I never felt shame for my country until this June. The Supreme Court without any hesitation revealed their utter contempt for the Constitution. As an attorney, I am aware more than most people the true essence of the gay marriage decision. It is a complete fraud. As recently as 2003, gay sex was a crime in some states. Then almost overnight, gay marriage became a constitutional right. The judicial process of transforming gay sex from a crime to a right was a total sham.
If James Madison were alive today, he would tell us that the Supreme Court does not have one ounce of authority to define marriage for any state. The authors of the Fourteenth Amendment would agree with him. Not surprisingly, the Supreme Court is again the Great Divider of the American people. No one divides us more than they do and clearly their values are a source of moral rot.
Let’s face it. Sodomitical marriage is not consistent with family values and it requires a great deal of stupidity to believe that opposing it is being on the wrong side of history. Making matters worse, a fair election on gay marriage decided the question in Ireland. The international community witnessed which legal system respects their citizens. Does anyone doubt that the people of Ireland have more freedom than we do?
This article offers three strategies to limit judicial activism. All will be difficult to execute, but not impossible. The secret to success is a coalition. We need to build a coalition. It will take a large coalition of different interest groups to get Congress to act. The coalition members are those people who have lost big in a 5 to 4 decision. The members might include Citizens United people (campaign finance), Kelo people (property rights), environmentalists, and even pro-abortion groups, etc. If these groups work together with the pro-family forces, a large enough coalition could bring welcome change. Here are the strategies:
1. Require a supermajority on the Supreme Court.
The Constitution does not say that majority rules on the Supreme Court. Nowhere does it say that a 5 to 4 decision is the law of the land. This is a merely a longstanding custom we accept. Since Congress in 1789 originally approved of six members for the Supreme Court, it is unlikely they had majority rule in mind.
A possible solution to judicial activism is to require a super majority on the Supreme Court. This means a one vote majority is not enough to win. It is insane to allow one vote to change marriage for 320 million people. The Constitution does not require it and we should not accept it.
To declare a law passed by Congress unconstitutional, I recommend a 6 to 3 vote. Since 1920, the Nebraska Constitution requires a 5 to 2 vote for this purpose. North Dakota requires a 4 to 1 vote.
To declare a law passed by the states unconstitutional, I recommend a 7 to 2 or 8 to 1 vote. I recommend a higher vote for a state law in deference to the Bill of Rights. Super majorities should be required at lower federal courts as well.
No amendment is necessary to effect this change. Congress has the authority to do it in Article III, Section 2, Clause 2. See the words, “under such Regulations as the Congress shall make.”
A large enough coalition could get this passed in Congress.
2. Limit the jurisdiction of the Supreme Court and lower federal courts.
This is known as jurisdiction stripping. Congress can limit the jurisdiction of federal courts including the Supreme Court. Congress has done this before. See Article III, Section 2, Clause 2. Congress can simply take away jurisdiction from federal courts all issues concerning gay marriage. Even with the Obergefell decision in place, a state could reinstate its marriage laws and a federal court could not interfere.
No amendment is necessary to effect this change.
3. Change the amendment process in Article V to the Constitution.
It is very difficult to amend the Constitution. The framers of our Constitution intended to make change difficult. Unfortunately, they never heard of Anthony Kennedy. Right now as soon as the Supreme Court declares something unconstitutional, it’s over. It does not matter what Congress, the president, and 50 state governors think. This must stop. It’s time for a change.
Currently, the Constitution may be amended by Congress or by the states. If two thirds of the states call for a constitutional convention, then one must be held. This has never occurred. If two thirds of Congress can agree on a proposed amendment, then it is sent to the states for ratification. Regardless of which method is used, three fourths of the states must ratify a proposed amendment before it is added to the Constitution.
Instead of requiring a two thirds majority in Congress to propose an amendment, a simple majority will do. No Senate filibusters allowed. This change will move power from the Supreme Court back to the people. It will be considerably easier to reverse a bad decision by the Supreme Court.
Or in the alternative, the states could propose amendments the way Congress does. If 26 states agree to a proposed amendment, then it must be sent to all 50 states for ratification. The states do not have to call for a constitutional convention. An Article V amendment is required to effect this change.
The above strategies are a sample of what is possible to limit judicial activism.
David W. New is a member of the Maryland and DC bars. He is the author of The Constitution for Beginners.
