“It is now clear that it is the courts that threaten our liberty – the liberty to govern ourselves – more profoundly than does any legislature…It is the judiciary’s assumption of power not rightfully its own that has weakened, indeed severely damaged, the constitutional structure of the nation…it is the courts that are not merely endangering our freedoms but actually depriving us of them, particularly our most precious freedom, the freedom to govern ourselves democratically unless the Constitution actually says otherwise…judges cannot be trusted with a written constitution and an unlimited and uncheckable power of judicial review…the upshot is that the democratic nation is helpless before an antidemocratic, indeed a despotic, judiciary. The American people seem, at the moment, to be submissive and without the political will to reclaim the liberty that is rightfully theirs.”[1]

Bork states that the only remedy, short of revolution, is a Constitutional Amendment giving the power to review decisions of the federal courts to Congress or the Senate. England as a similar form of government, the House of Lords holding the power of review over the decisions of its highest court. Here is the text of just such an Amendment. It will not prevent politicization of the law. We already have that. But it will ensure that the law and Constitution are interpreted according to democratic processes through the people's representatives.

The first paragraph establishes "original intent" as the only interpretative method authorized under the Constitution. This is to prevent courts from indulging in an amorphous, roaming interpretative hermeneutic by which the member's own subjective thoughts and philosophies determine the outcome of cases. Original intent means that the specific objective behind a particular law or amendment is to limit its application. This means, for example, that the Fourteenth Amendment, which was intended to guarantee former slaves liberty and equality before the law, will not later be used to prevent "gender discrimination," or to serve as the basis for legislation for Americans with disabilities, and so forth.

The second paragraph undoes fifty years of judicial mischief by returning the Fourteenth Amendment to its original intent. It is through a perverse misuse of the Fourteenth Amendment that evils such as "at-will" abortion, homosexual sodomy, removal of the Ten Commandments from public property has been perpetrated. This has been done by the unconstitutional doctrine of "incorporation" whereby the limitations the Bill of Rights places upon Congress have been turned back upon the States!

The third paragraph gives the People, through their elected representatives in the Senate, the power to review decisions of the courts of the United States (not state courts). A majority vote of the Senate's members is necessary to over-rule the decisions of lower courts. The People, through the Senate, would thus become the court of last resort in cases arising under the laws and Constitution of the U.S.

Proposed Amendment to the United States Constitution

1. The Constitution and laws of the United States shall be interpreted according to their original intent at the time of ratification or enactment.

2. The Fourteenth Amendment to the United States Constitution shall not be construed to incorporate, or otherwise make applicable to the States, limitations upon the federal government contained in the Bill of Rights.

3. The Senate may grant petitions seeking review of decisions of the courts of the United States, including the Supreme Court. Decisions reviewed under this article shall not be reversed or otherwise modified except upon a majority vote of the Senate’s members. In reviewing decisions under this article, the Senate shall sit as the final interpreter of the Constitution and Laws of the United States.

Pass it along!

Notes:

[1] Robert H. Bork, Slouching Towards Gomorrah (ReganBooks, 1996), pp. 115, 117,119.