Taming The Supreme Court

THE SECOND AMERICAN REVOLUTION—ONE WAY OR THE OTHER [PART 3]

“Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”
--Missouri v. Jenkins, 495 U.S. 33, 58-59 (1990). [Justice Kennedy, joined by the Chief Justice, and Justices O’Connor and Scalia, concurring in part and concurring in the judgment].

Americans fought a Revolution over the issue of “taxation without representation;” however, the United States Supreme Court seems to have forgotten that; it gave the federal courts the power to compel legislatures to raise taxes and, if the legislatures refuse, (because they have to face the voters) the federal district courts now have the power to levy the taxes on the citizens without any legislative action. The citizens of Kansas City, Missouri were not consulted, they did not have the due process right to legal notice and a chance to be heard, they were not a party to the suit which led to the court order. Nonetheless, they are paying the four-fold tax increase.

PLAN OF ACTION

By a simple majority vote in two-thirds of the state legislatures, the states can demand that Congress call a convention for offering amendment to the United States Constitution.[1] The first order of business at such a convention should be stripping the United States Supreme Court and the subordinate federal courts of their self-given power to levy taxes directly on citizens bypassing the legislative process.

(2) THE PROPOSED AMENDMENTS—REFORM OF THE UNITED STATES SUPREME COURT

Amendment XXXVI – Prohibiting the Article III Courts From Imposing Taxes

Sec. 1. The sole authority to “lay and collect Taxes, Duties, Imposts and Excises” is vested in Congress by operation of Article I, § 8 of this Constitution.

Sec. 2. The Article III courts, including the United States Supreme Court and the inferior courts created by the Congress pursuant to the authority of Article III, shall have no jurisdiction to levy Taxes, Duties, Imposts or Excises.

Sec. 3. Article III court shall not have jurisdiction to hear or rule in any case, controversy, petition or complaint whose object or effect would directly require that any legislative body impose Taxes, Duties, Imposts or Excises.

Sec. 4. Article III courts shall not have jurisdiction to hear or rule in any case, controversy, perition or complaint whose object or effect would be to compel any action by any legislature which would have the indirect effect of requiring the legislature to impose Taxes, Duties, Imposts or Excises.

Author’s comment: This is a vital, but incomplete, remedy to the Court's new-found power to tax. It will have little permanent effect merely to take away the Court’s power to impose taxes without also taking away its ability to “amend” the Constitution. See, post.

There is nothing in the Constitution which grants the Court the power to tax. The Court assumed that authority over time, just as it assumed the authority to overturn an Act of Congress after the Constitutional Convention specifically rejected giving that power to the Court.[2] Therefore, the states must explicitly take away the Supreme Court’s power to hand down decisions which become de facto amendments to the Constitution.

(De facto is used in the sense of "a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illigitimate. . . . it is contrary to de jure, which means rightful, legitimate, just, or constitutional." --Black's Law Dictionary, 5th ed).

Amendment XXXVII – Article V is the Exclusive Method to Amend the Constitution

Sec. 1. The exclusive power to amend the United States Constitution is contained in Article V of this Constitution.

Sec. 2. Any decision of the United States Supreme Court which has the effect of amending the Constitution shall be void ab initio.

Sec. 3. The President of the United States, exercising the Executive Power of the United States, shall have no obligation to enforce such a decision, nor is the Congress, or citizens generally, obligated to comply with the decision.

Sec. 4. This amendment, standing alone, shall be prospective and not retrospective; PROVIDED, HOWEVER, See Amendment XXXIX post.

Amendment XXXIII – Limits on Supreme Court Interpretation of the Constitution

Sec. 1. The Supreme Court of the United States is a creation of the United States Constitution and derives its authority solely from the United States Constitution.

Sec. 2. When interpreting the Constitution, the Court shall be bound by what is contained within the “four corners” of that document and its lawful amendments proposed and ratified pursuant to Article V.

Sec. 3. The Supreme Court of the United States shall be cognizant of the fact that it is interpreting the Constitution and Laws of the United States of America; constitutions, laws, or court interpretations by any foreign court, prince, potentate, power, government or principality are irrelevant to the interpretation of the United States Constitution.

Sec. 4. The Supreme Court of the United States shall not look for guidance in foreign or international law or "opinion polls" whether foreign or domestic.

Sec. 5. This amendment, standing alone, shall be prospective and not retrospective. PROVIDED, HOWEVER, See Amendment XXXIX, post.

Amendment XXXIX – Overturning Supreme Court Decisions

If either House of Congress shall determine by a majority vote that any decision of the United States Supreme Court, whether past, present or future, was or is a de facto amendment that changes the substance or intent of the Constitution and its lawful amendments as written, that House may consider legislation restoring the law to the status quo ante. If after consideration two-thirds of that House shall agree to pass the Bill, it shall be sent to the other House, by which it likewise shall be considered, and if approved by two thirds of that House, it shall become Law.

Author's comment: We need these “legitimate” constitutional amendments, meeting all the requirements of Article V of the Constitution in their proposal and ratification, to prevent the Supreme Court from unilaterally and unlawfully “amending” the Constitution without following the process for amending the Constitution. When Court “interpretations” fundamentally change the meaning or effect of the Constitution, the interpretation is a de facto amendment. Before Roe v. Wade[3] there was no constitutional right for a woman to have an abortion. After Roe v. Wade there was a constitutional right for a woman to have an abortion. Roe v. Wade amended the Constitution.

AUTHOR'S PERSONAL NOTE: Whenever I comment on Roe v. Wade, I am compelled to state that I have no opinion on the merits of that decision. I do not have a uterus, and I never expect to become pregnant, my wife is beyond child-bearing age; whether or not abortion is or should be lawful is a non-issue for me. Roe v. Wade does, however, provide a worderful example of the Court "amending" the Constitution by finding new rights in the Constitution that are not actually there.

This blog is not about abortion and I don’t want it to deteriorate into an argument about abortion. My thesis is that if the decision in Roe v. Wade has merit, it should have been enacted by the legislature and not by the Supreme Court.

Throughout the history of the United States some 10,000 amendments have been proposed to the Constitution. Only thirty-three have been voted out of committee to be considered by the full Congress; only twenty-seven of those have been ratified and become part of the Constitution. It will be a Herculean task to generate interest in a convention to propose several amendments.

But in looking at that task, a 2002 CBO study predicted that federal taxes will consume 40 percent of GDP by 2075; the CBO director testified earlier this year that "the federal government's spending for Medicare and [the] Medicaid program would together exceed 21 percent of GDP by 2050 (compared with 4.1 percent in 2004) and total [Federal] spending would be about 33 percent of GDP."[4] Add to that number the 10.1 percent state and local governments tax and many citizens alive today will see taxes of 43 percent of GDP!

We are on a collision course with chaos. The longer we wait to "fix" the problem, the more painful the solution will be.


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[1] U. S. Const., Art. V
[2] See: Marbury v. Madison, 5 U.S. 137 (1803)
[3] 410 U. S. 113 (1973)
[4] Gingrich, Newt. "Conservatism at the Crossroads"What's New With Newt, Vol 3, Issue 5, (May 2005) [For original source, in mind-numbing detail, go to http://www.cbo.gov/ ].