Much is said these days about judicial activism. The charge usually comes from the Right-- that activist judges are out of control and reading rights into the Constitution that are not there so as to further a leftist agenda.

But "activism" can just as easily come from the Right. Most recent example being the Bush v. Gore decision of 2000-- where the Court's holding went contrary to its usual trend of respecting states rights and overturned the Fla Sup Ct decision. Most telling, the opinion was careful to say that this particular case was an exception. (go figure)

In any case, judicial activism exists. Judges are people and they can't help but bring their own personal and political biases to the table when deciding a case. So what to do? We need judicial review-- so how do we draw some kind of balance without abolishing the concept of judicial review?

I have one possibility and I would like to get others thoughts. We should amend the Constitution to require the following:

If the Supreme Court is going to overturn a democratically enacted law, the Court can only do so if it has a "supermajority". The same as if we want to amend the Constitution we need a supermajority of Congress and the States. The Court should not be able to overturn a democratically enacted piece of legislation with just a simple majority i.e. 5/4 decision. Rather, we should require something like 7 out of 9 of the justices to sign on to the majority opinion. Remember, the Brown decision was unanimous.

Question for Debate:

What do you think of a constitutional amendment that would require the Court to have a supermajority of justices sign on to any decision where it is overturning a democratically enacted law?

This is a very interesting question.

I am sort of lukewarm about it. I would neither strongly support nor strongly oppose such an amendment. I tend to think that the odds of passing such an amendment would be pretty slim.

Overall, I believe that such an amendment might make things a little more complicated than they are now. It might be hard to tell when a decision by the Supreme Court would actually be "overturning a democratically enacted law" or not. What if a state Supreme Court overturns such a law, and the national Supreme Court upholds that decision by a split vote, for example? It could get messy.

By the way, I don't think that anything in the Constitution establishes exactly how many members of the Supreme Court there must be. Such an amendment would have to establish a firm number.

Victoria-- It wouldn't be hard to tell when a decision is overturning a democratically enacted law. What I mean by that phrase is any law that is passed by an legislature (state or Congress). The phrase does not include a court decision.

I really support this idea as it requires the Court to produce a decision that is more likely to cut across political lines. The political bias in decisions these days is a real problem. And everyone knows it-- otherwise each side wouldn't be fighting to the death the other side's judicial nominees. And this proposal does not find support in the Right-- I am sure pro-lifers would be very against this type of requirement as they are hoping to use the "activism" of the Court (in a conservative sense) to get Roe v. Wade overturned. I truly see judicial activism as a non partisan issue. I am tired of the skewed political results we see as a result of the power of the judges. All the talk about "moral" issues driving the election in 2004-- relates to judicial activism. Take away the sweeping power and you take that off the table.

I would be firmly and unalterably opposed to a constituional amendment requiring a supermajority of Justices to overturn a democratically law. Talk about the tyranny of the majority! Whichever side of the Supreme Court could garner the most ideologically like minded individuals would forever be able to trample underfoot the minority regardless of the correctness of the position being advanced.

What is so magical about picking up two more votes to make a decision a 7-2 split instead of a 5-4? For example, had John Kerry been elected president and Justice Rehnquist, Stevens and O'Connor had retired, Kerry could appoint (presumably) liberal-to-moderate justices that would place Scalia and Thomas in the minority and tip the balance of power to Souter, Breyer, Ginsburg and Kennedy. That same fear now exists in the hearts of liberals who expect that is precisely what President Bush will do when the inevitable vacancies on the Court open up.

A supermajority would only deepen the divisions and rancor of the Supreme Court and make the ability by moderates such as O'Connor and Kennedy to guide the Court down a middle path an impossibility.



This is true on it's face, Haleyanne, BUT, Brown vs. Board of Education was a huge victory in the battle for civil rights. The NAACP had tried challenging segregation laws in state courts and was getting nowhere. Could you imagine how long the struggle would have taken slogging through all the Southern state courts?

Had the Supreme Court not accepted the challenge of Brown, legal segregation MIGHT have eventually been dismantled. But then again, America might still have states where legal segregation is permitted and other where it is not.

"Judicial activism" is at times a case where judges can act within the scope of their legal authority to address a situation where elected politicians lack the will, the courage or the desire to.

The problem as I see it is that the process of elevating judges to the federal judiciary has become so politicized that it has poisoned the entire process. To a large extent this began when the Democrats rejected President Reagan's nomination of Robert Bork. Personally, I thought Bork was an extremist and out of the mainstream of judicial thought--then and now. But he was absolutely gutted like a fish by liberal interest groups that lined up to denounce him.

So what happened? The Republicans bided their time and when President Bush 41 sent up David Souter and Clarence Thomas for their turn at bat, there were no extensive paper trail of writings and opinions such as those that dogged and doomed Bork. Souter proved to be a disappointment to conservatives hoping he would be a true believer and adherent to "judicial restraint," but Thomas survived the most controversial hearings a Supreme Court nominee has ever experienced (I still have the letters from Senators Paul Simon and Ted Kennedy promising they would ask Judge Thomas tough questions).

Now the model is for the President to send up nominees to the federal and Supreme Court that aren't necessarily the best and brightest, but most likely to be confirmed with as little drama as possible. If you're mediocre, non-controversial, and share the same politics as the politicians nominating you and you are "confirmable" that's good enough. No superstars or brilliant minds need apply.

It's the process of selecting and screening judges that is broken and badly needs to be fixed.

I don’t think the SC has the right to overturn any law. True they are the body established to make decisions on appeals, but if in review of an appeal they determine the judgment was based on an unconstitutional reason then they should defer the judgment to the Congress with a brief and be deposed on positions for and against for their findings. Then the congress could decide, as attorneys for the people with a two thirds vote the support for the courts decision or not. Should the Congress disagree the law should be placed in a two or three year “sunset” requiring the Congress to vote it up or down each sunset with a two thirds majority.

By using such a review system judicial activism would be removed from the SC while allowing for judicial review. By placing action back in the hands of the people instead of appointed judiciary the public would become more actively involved in the election process of their representatives and hold them accountable.

I base this on the fact our nation was founded on common law and the referenced text in link http://www.constitution.org/jury/pj/nelson.txt in the paragraph starting with words “Even more telling” that contains footnotes 62, 63 & 64 addresses several FF position on judicial and the citizen as the determining authority of law.

You want to abandon a precedent set by Marbury v. Madison that has been in place for over 200 years? Stripping the court of the power to declare laws unconstitutional would seriously compromise the balance of power among the three branches.



You might want to rethink this one.

http://www.nps.gov/jeff/LewisClark2/Circa1...upremeCourt.htm

I think that this whole debate is another clear cut example of right wing radio driving a word that has no real meaning except to those that listen to right wing radio.

OF COURSE the supreme court should overturn laws that are unconstitutional. I don't care if the majority doesn't like it- and it should have no impact whatsoever on the SC either. What if tommorow (picking a right wing sacred cow here) the Congress, in the act of losing thier ever loving mind, made all firearms in America illegal, and to own one was a felony. Of The entire nation, about 51% of the voters want this law- the other 49% are very strong in thier objection. The SC overturns the law, and places very strict language against congress for doing so again.

Would this be judicial activism? I don't think 2nd amendment folks would think so!

So far, this entire word is the fabrication of sore losers that can't get over the fact that the constitution does not just protect white male christians real estate developers, but everyone, and sometimes, they over-rule the majority, and rightly so.

Our system had this caveat built into it TO LIMIT both the tyranny of the majority and demagogue style politics we are seeing today. I, for one, am glad it is working.

Without the SC, and thier "judicial activism" I have no doubt we would have actual Nazi era atrocities in this country within 10 years, or a civil war, or both.

What do you think of a constitutional amendment that would require the Court to have a super-majority of justices sign on to any decision where it is overturning a democratically enacted law?

I think it's a terrible idea that would cause a major shift in the balance of power in our country to the congress. And we all know how pure as the driven snow Congress is.

My first problem with it is the idea that overturning laws is more damaging to the American Public then legislating them. IMHO our personal liberty is far more at risk of being legislated away, one piece at a time, by congress, and it is only the Supreme Court that has the power to protect our constitutionally given liberties from such legislation, if the President does not.

The next problem I have is with the "Democratically enacted" part. The first problem I have with this is people continued belief that we live in a democracy. We do not. We live in a Representative Republic. Our government was designed the way it was to avoid the tyranny of the majority that many of the founding father's felt was the primary fault of a pure democratic system of governance.

The second problem I have with this is that a "Democratically enacted" law is not always right, regardless of the will of the people. Regardless of how a law is voted on (through the legislature or a referendum) it is unconstitutional if it violates our constitutionally given rights.

The majority is NOT always right. Remember. the majority supported Slavery years ago, the Majority supported segregation in the last century, etc.

Judicial Activism can be a problem. However, it is rare, far more rare then some would have us believe. I would love to see some examples of "Judicial Activism" from the Supreme Court put forward in support of such a measure (Not saying there are not any, I just want to see the examples that make such a radical measure necessary in the eyes of it's supporters).

For those that currently support this "super-majority" measure I have a question (since the supporters all seem to be from one side of the political spectrum). If the court was still aging as it is, and we were likely facing at least two appointments by the current president and that President happened to be a Democrat rather then a Republican and that Congress happened to be controlled by a Democrat majority would you honestly still support this measure, knowing you would soon have a super majority of the justices from the ideological left on the court for life? Somehow, I doubt it.

OS, I think you are locating this issue on the wrong side of the aisle.

The bulk of the use of the term judicial activism (and its derivatives like activist judges) comes from the right in reference to supposedly liberal agenda judges and their decisions. (Massachusetts Supreme Court, Pledge of Allegiance etc.)


I think the liberal view is that the Bill of Rights must be defended and that the judicial system protects our Constitutionally enshrined civil liberties from laws passed that violate the constitution.

As far as I understand the legislative process the term "democratically enacted law" is a redundant phrase. I can't think of undemocratically enacted laws in the US system.

We have a system of checks and balances. The judicial system essentially asserted the right of review of the Constitutionality of laws and actions of the legislative and executive branches. I strongly believe that this is an important part of our process. Judicial abuse is rare and overblown. The judicial systems have checks of their own in the area of appeals. The point addressed by OS's quote makes this issue puzzling to me because the SCOTUS is currently moderate to conservative and the Republican Party is very likely to be appointing the next two or three Supreme Court justices. So what is the problem?


To me judicial activism is a buzz word. It will serve Republicans well (like death tax and tax relief) in terms of political marketing, because it can be part of an argument to try to pull the judicial branch back into the mainstream by appointing judges with strong conservative views. This is an advance argument against the fears of liberals when they see a supermajority of Conservatives in the SCOTUS.

Ideally judges would be machines that simply read the law and rule based on existing law. However law is as much art as science and nuanced decisions have to be made. So there will always be so-called activist judges and they are part of our system. In this case I am a conservative, I like the existing system and see no good reason to change our judicial system. This is in large part because I don't believe in a system filled with activist judges who disregard the laws of our land.

As for ruling democratically enacted laws unconstitutional, I want to know that when Congress passes laws that limit my ability to express my views or tells me that I must affiliate myself with a religious institution, someone will be there to chuck out that law.

This is the part of our system that protects us from the tyranny of the majority. And it is a very valuable part of the system.

Eeyore wrote:



There are two types of "law" in this country. Statutory law and common law. "Democratically enacted" law refers to law enacted by the legislatures -- both state and federal-- this is statutory law. The other type of law is common law which would not fall under this umbrella. The U.S. is a common law system, which means many of our "laws" come from the courts directly. This is known as "common law". There is very little federal common law, most is state common law. In any case, this particular proposal would apply only to democratically enacted law i.e. statutory law.

Eeyore wrote:



True. These days the charge of judicial activism usually comes from the Right. But judicial activism is not a partisan term by definition. The 1930s is well known for an era of "conservative" judicial activism. In fact, with the likelihood of George Bush to replace some of the liberal judges on the Supreme Court there is great potential for the Supreme Court to become activist in a Conservative sense -- essentially for the rest of our lives. So-- don't say I didn't warn you.


Eeyore wrote:



The beauty of this proposal is that it keeps judicial review in place. Its only requirement is that 7 (instead of 5) of the 9 Justices be required to overturn a statute as unconstitutional. The proposal is not perfect, but the requirement would at least insure that such a drastic action of overturning a statute as unconstitutional would cut across political lines.

Eeyore wrote:


.

Yes Eeyore, the term "judicial activism" has been used very effectively by the Right. In fact, I would argue that it played a major role in winning the election for Bush this past year. This proposal takes that away for all practical purposes. If we know that the Supremes are going to have to find a super majority consensus when overturning a statute the "court packing" that each side seeks to have will be very difficult to achieve.

Eeyore wrote:



Of course. And judicial review will still be in place. It will simply take two more justices to sign on to calling something unconstitutional. Under this proposal, any decision by the Supremes that does indeed overturn a statute-- will cut across political lines and not fall so clearly along partisan lines. Like I said in the original post-- Brown was a unanimous decision. True violations of the Constitution will be checked.

Hayley, essentially we are looking at the same information and disagreeing. I get your points and I don't agree with them.

I argue that a supermajority limits the powers of the judicial branch and erodes our checks and balances. You argue the point differently.



Here is a point where looking closely at the matter shows the art of judicial decisions as opposed to the science of interpreting laws. Earl Warren politicked very hard (and yes Virginia, SCOTUS judges are politicians) to get a unanimous decision for the Brown decision. And with all backroom political negotiations there was a deal struck in order to get that decision.

It delayed the implementation decision. Instead of having a decision that compelled change in the present system the court delayed the implementation decision.

In the meantime the executive branch of the government showed no support (Eisenhower railed against Warren for this decision and did not use executive force behind the decision until Governor Faubus of Arkansas defied him in regards to integrating Central High School in Little Rock in 1957)

Also a group of 100 Southern Congressmen used this pause to issue the Southern Manifesto which was a promise to use all means at their disposal to fight the brown decision.

When Brown II did come a year later it used intentionally vague language in regards to getting rid of segregated schools. Specifically the phrase "all deliberate speed" was implemented. An odd choice of words for two reasons. 1) deliberate actually has a meaning of slow, so if you are a Southern Manifesto-ite you can have a ball with that double meaning. 2) it means nothing. It opened the door to people who delayed implementation of the decision for 10 and 20 years and turned the issue back over to the the people of a district to challenge the segregated schools and open themselves up to violence from their neighbors for rocking the segregation boat.

A clear implementation decision drawn on a majority of the court without politicking around for a supermajority could have improved American education much more quickly. Instead, going for the supermajority got a watered down decision that democratically elected politicians (unless of course you were black and trying to use your voting rights) were able to exploit to delay implementation. And in the fight itself many of these politicians like Orval Faubus and George Wallace found an issue to exploit to ensure their reelection.

So I don't see the Brown decision as a triumph of the issue of supermajorities. I would much rather have had a 5-4 decision and a real implementation decision.

Within 24 months would have allowed the moderates in the south to survive politically as they became the reluctant followers of the Constitution and law and order. Instead it created a pack of rabid segregationists and the rebel flag started showing up above state capitals.

Yes Eeyore -- you are right-- we fundamentally disagree-- and on more than just the necessity of a super majority requirement.

You wrote:



I disagree vehemently with your premise that a clear implementation decision drawn from a majority would have improved American education more quickly. Segregation was deeply embedded in Southern culture. It is unrealistic to believe that a flimsy majority decision would have made the transition any easier. In fact, I believe it would have made it all the more difficult. Why do you think all the "politicking" went on in the first instance? It was a major feat for Court to cobble together the unanimous decision -- why did they bother? Warren knew that desegregation didn't have a chance unless the Supremes stood together with a unanimous decision. It was unprecedented what they did at that time in terms of jurisprudence-- the only hope they had was to present a united front.

It goes back to a fundamental disagreement, I think, that you and I have. You believe that major societal change can be mandated and then implemented by the Court. I do not. I believe that major societal change can only be implemented when the majority of the population stands behind such change.

The problem is the balance of power, the people don’t have any!
Hayleyanne presents a problem and a possible solution. My answer to the problem and the solution were just that and I did give them thought.

The problem is the SC has been elevated to a power equal to Gods or Cesar in viewing the constitution interpretation as mere humans. The problem is not the plurality of the court, rather is the power of the court. If you recall there was a very large filibuster in the Senate over lower level nominations recently with the turf protection of the possibility one of these nominations may be selected to be a SC God in the future. What balance would the SC have if it had been struck by one of the 9-11 planes and all members killed? What balance plan would there be to replace these Gods?

The problem is the people didn’t elect them as stated in my last post reference the FF’s thought the people should be empowered, that their knowledge of the law was enough to cause law to function. Exchange SC with Electoral College as appointments by ruling political parties at state level and allow them to, as they constitutionally may, vote opposite of the vote of the population of your state’s citizens will until they die. Would you see equity in such an equal representative system?

In my original response I said the people should decide verses Gods because our government was fashioned around common law verses Roman Civil Law.

Perhaps the SC should be made much larger branch. If divided into two branches, one for appeals process as now exists and one for law constitutional review of all new laws and existing laws then one branch would counter the other and the conflict would be resolved by the Congress, “THE PEOPLE”. I’m a simple common sense problem solver, I could care less of the case you referred to or the Godly power the SC enjoys at the PEOPLES demise. In my mind and my reference to the link of the FF’s the people and not Gods should decide law regardless of plurality. Power to the people!

Machiavelli touched on this question in the Discourses, that is, whether obedience precedes law or law precedes obedience. It's the old chicken and the egg thing.

I think laws have to first be in place and that people just have to get used to them whether or not they, in fact, approve. If we had waited until people were behind Brown v. Board, for example, things still might be much as they were in 1954.

Hayleyanne, your prescription is one for political inertia.

THE SUPREME COURT has ONE ROLE and ONE ROLE ONLY in our government. IT IS TO UPHOLD the Constitution. When the neo-cons propose using "majority rule" to swear in justices who are committed to any agenda other than SERVING TO UPHOLD THE CONSTITUTION...then it is the responsibility of the countering forces to do everything in it's power to forestall such appointments. THIS IS WHY there is the filibuster, built into the rules of the Congress!

America is a Republican Democracy...it is not SUPPOSED to be a country of mob rule. If Frist manages to kill the filibuster, kiss your "democratic government" goodbye.

I find it amazing that when I read the constitution and the bill of rights, I do not see the Supreme decisions as being "activist". Heck, I think sometimes they are TOO conservative and guarded. But honestly, how anyone thinks appointing a Supreme with a bigots agenda, or a stripping of women's rights mind set is going to be anything other than the activism that they claim to abhor.

The Supreme Court is sworn to uphold the constitution. What you going to end up with is RE-ACTIVIST judges...and hold onto your hat then folks...cause THEN the Supremes are going to be just another cog in the neo-con wheel that's rolling over your civil rights.

Machiavelli thoughts should have nothing to do with America law, which is common law since his historical principles are inherent in Roman government writing the ten books of Titus Livius the history of Rome.

Do you deny America adopted common law?

Do you deny America rejected Roman law?

Why do you use this Roman Civil Law figure as a player in American society?



The nation is returning to pre Brown v. Board, for the reason the change was forced on the majority. You can litigate law but you can’t litigate love and understanding. Law has to move with the majority’s will. Our country was founded on that very principle, common law; the majority makes the law, interprets and enforces the law. Coerced law is origin of Roman law from a higher source of authority than the people. A failed system of law I might add that was NOT adopted by our FF's!

To elaborate my point I will say an openly gay male or female or any female cannot legally command a US Marine combat unit on the front lines.

Cesar can dictate they are equal but the masses do not follow. Simi sweet pills may be swallowed and are regurgitated and bitter pills are rejected. This is not ROME!

Edited to add colored reinforcing text.

oh...and while I'm at it...let's address the MYTH that has the FUNDI's up in arms...THAT GOD (well, at least THEIR INTERPRETATION OF GOD) is not in our laws!

The AMERICAN legal system is ABSOLUTELY NOT BASED ON ANY BIBLICAL LAW. It was MODELED on SAXON law. And that folks was ENTIRELY a PAGEN society.

So....Sarge...HOW can any SUPREME justify inserting the "Christian GOD" into the American legal system....(and I could say Constitution but that's another debate)

Your statement: The nation is returning to pre Brown v. Board, for the reason the change was forced on the majority. You can litigate law but you can’t litigate love and understanding. Law has to move with the majority’s will. Our country was founded on that very principle, common law; the majority makes the law, interprets and enforces the law. Coerced law is origin of Roman law from a higher source of authority than the people. A failed system of law I might add that was NOT adopted by our FF's!

THIS is absolutely not true! This why the founders formed the 3 Branches of government my friend...as Jefferson said...true democracy is nothing MORE THAN MOB RULE! The Constitution was absolutely constructed with THE INTENT to STOP MAJORITY RULE!



DOES THAT sound like a man who thought "majority rule" was intelligent much less desireable!

I guess you support the proposal then? As you point out, activism can come as either liberal or conservative.

Chris Matthews said not too long ago on Hardball that Karl Rove so admires Nicolo Machiavelli that he rereads The Prince every single year. So, even if Macvhiavelli isn’t pertinent theoretically, he certainly is on a practical level.

In addition to dazzling us here on AD with your “knowledge” of political theory, why don’t you email Rove and tell him to cut all this Machiavellian crap out? Tell him it’s damned un-American. That should straighten him out once and for all.



http://mailman.efn.org/pipermail/poclad/20...ber/000723.html

Edited to add:



You may, in a general sense, be right. The country has grown harder in recent years. As Bush has placed the mask of god on the nation he has removed the face of human compassion.

Did I say that? I said nothing of God; well I did compare the SC equal to God or Cesar. Why should I mention God, as it isn’t associated with the topic?

An argument allowing for Council of Revision, composed of federal judges and the president, to veto laws made by both Congress and state legislatures was presented by a Virginian by the name of Randolph. This was rejected because the guy wanted the President involved as a member and the Governor of PA; Morris objected inasmuch that those who make laws should not be involved in interpreting the laws. By removing the President from this legal review and making it a branch of the Supreme Court laws could be validated when made.
Art III allows for the Congress to take certain actions:

So I see no reason changes to the process of SC Cases could not be made as I earlier mentioned.


Can you give me a reference for the above statement?


Does this? Also quotes from Jefferson.

Let me elaborate...for I did indeed make a few "internal leaps" which were NOT listed in my post.

The premise of my statement is this...

if we used "science and reason" to develop our law...(which was clearly the intention of the founding fathers) then MUCH of the argument that the Supreme Courts practices "activism" that so many take exception to ... become mute.

The "perception" that the "Supremes" make activist decisions is primarily based on when they OVERTURN laws that attempt to enforce CHRISTIAN MORAL OPINION upon the whole population....

Here is a "brief" list of why I assert that the argument is MUTE if you bring people to the understanding that "GOD" , particularly religious or societal judgments are NOT a part of our legal system or constitutional government:

1) Separate but equal (based on racial bias and bigotry...not science or reason which would never relegate a black to 3/5 of a man)
2) Abortion (based on a religious, moral judgment...not science or reason)
3) Discrimination against gays (based on a religious, moral judgment...not science or reason which acknowledges that the behavior exists THROUGHOUT NATURE and in many societies is considered QUITE acceptable, that the behavior does not in any way reduce their contribution to the society in which they live)
4) Discrimination again women (based on religious and societal values...not science or reason that sees females as NO LESS than men as vital & contributing members of their social group)
5) The removal of THE CHRISTIAN Prayer from GOVERNMENT INSTITUTIONS such as schools (based on the separation of CHURCH and STATE...so that the STATE would NEVER sanction a "state" religion")

We have the "Under God" added to the pledge of allegiance during the Joe McCarthy era...IT WAS NOT part of the pledge before this time. The people who seem to think that any reference to "God" or the "Creator" is "proof" of the founding father's belief in the "Christian God" are simply false. The prevailing founders while believing in a Supreme Being WERE NOT necessarily enamored of Christianity.

The perverted arguments used by the neo-cons that there was an intent to infuse "GOD" (by which they mean the Christian God...neo-con code)...into the American body politic is a lie. Plain and simple. But is a lie that has been sold to a majority of Americans who do not take the time to ferret out the truth for themselves.

The neo-con use of "human hatreds, superstitions and bigotry" has been honed into a deadly tool that they are using to move America from a "Republican Democracy" into a fascist state. The Anti-Federalists led by Patrick Henry TRIED to insert the "Christian God" into the Constitution. THEY WERE NOT SUCCESSFUL Yet...here we are in 2005...rehashing the Anti-Federalist argument.

I hope this provides illumination for my previous post.

Thomas Jefferson:
"If the obstacles of bigotry and priestcraft can be surmounted, we may hope that common sense will suffice to do everything else"
"A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

May I point out that the last quote was in reference to why the founders established America as a Republican Democracy...why we have an electoral college (they never anticipated that the INSANE would become elected officials)

"Books that cannot bear examination, certainly ought not to be established as divine inspiration by penal laws"
Author: John Adams

"The whole religious complexion of the modern world is due to the absence from Jerusalem of a lunatic asylum."
Author: Thomas Paine

The SC has more than one job read Art. III. You appear to have an extreme biased passion to correct and incorrect but offer little substance to support your illusion.

Well maam, I hail from WV and hayseeds use a different logic then you seem to codger up. My pappy was a man of few words and if I’d be a bettin man I’d ponder you wish I was too. Pappy said when you find a woman wit spirit hang on to er, cus der ain’t nothing purdier than a woman with spunk when she’s mad. He said, the only other time she can be more purdy is when she is pregnant but a spirited woman is a God’s gift and as purdy as a speckled eared bluetic pup. Pappy said if you let dat thoroughbred discredit yer word in public you’d be looking at the floor in shame grinin like a possum eating fesh cow pie outa sandbrier. Now I rekon I don’t want to do dat but I sur would like to see your passion after you read my answer.

The elected officials in a democracy generally, or often directly reflect the known views of their constituents over their own judgment. In a republic the officials are expected to act on their own best judgment of the needs and interests of the country. Could we agree on that as a definition of our Democratic Republic?

I conclude from the definition not an implied Roman law from the SC implication but the Congress using reason and logic verses explicit following of constituents will. One could conclude “republic” as the standard applied in support of taxation, Social Security, NASA, Interstate highways, the Big Dig, WWI, II and Korean War. And one could apply “democracy” to the end of the Vietnam War. But, one can’t use logic to conclude “republic” directed to a Roman rule from the SC, it just doesn’t float. Think about a country full of Christians submitting to such a situation… What power would allow for such an arrangement? On one hand you have a democracy, you are the government and then on the other hand the God’s of the SC can take it away.

Logic would demand that since the Constitution allows for amendments the “democracy” is the strong hand. To impose a permanent set of Kings or God’s to rule from the SC there would have to be no room for change and even Art III allowed congress to modify.



Here we have Democracy v. Republic. Democracy, the Constitution says women and gays are equal and still in a Republic the government says be patient, in time you will be. The elected official says, in my own best judgment of the needs and interests of the country to allow gays and women to fight on front lines would not be in the best interest of the country because the military would be weakened and as a result the country.

When one looks objectively at both political parties as to which is Democracy biased and which is Republic in their base it smacks you in the face the parties are NAMED correctly! The Democratic Party follows the constituents and the Republican Party does the same plus insists to do what is in the best interest for the country.



The country adopted common law and not science and reason so I can’t make the leap that the SC is using any other standard than common law and the Constitution to make judgments. But, they are just people, and not God’s and are subject to bias equal to you and I.


This is a baseless statement, probably stated to inflict hatred toward a view other than your own! BOTH POLITICAL PARTIES practice the same traits of Democratic Republic, would you endorse President Clinton’s signing into law don’t ask don’t tell? How about all the gays in the Congress, is it their will to become a fascist state? Where was the outcry from either party last week when Prez Bush said clearly and in public “women WILL NOT command combat units? To say neo-con lead the race is to say liberals are their cheerleaders or silent majority! Have the gays and women filed their federal cases to prove to the SC God’s our nation is a Republic damned democracy? Doesn’t the SC watch the news when new laws are enacted? Where oh where is your FF’s guide to the SC?

I can match every quote from Thomas Jefferson and others with quotes that represent the opposite. Unless put into context words spoken, like a majority is mob rule, he could be referring to Catholics over Protestants and not speaking to democracy. Regardless, he and those cited were not the only founder and links go without refute the country was almost in entirety Christian at the founding of the constitution and there is no factual base to consider it secular. See link: http://www.americasdebate.com/forums/index...ndpost&p=139048 found on US Constitution Secular or Judeo-Christian Based Topic.
Spec yer bout fit to be tied bout now and purdyer than a speckled eared pup ponderin I didn’t cheer a thing you said.

Again you are arguing from a theoretical position. As a practical matter, judges can use whatever source they choose--reason or science, or maybe even a soothsayer to make decisions. From some of the pronouncements of Justices Scalia and Thoimas, one could argue that they are using voodoo.

personally Sarge...don't see anywhere you disagreed with my basic premises

that you took a different tangent...yep
that clearly we certainly would be voting on the same "social" agenda...yep

but...your basic discussion points do NOT appear to be in opposition to the facts

and yes...there are "other voices" involved in the founding of the nation...but I think we can can stick with Madison, Franklin, Jefferson and Adams (authors of this countries ruling documents) as the "authorities". Otherwise, we be talking about Patrick Henry and the principals of theocracy

I agree, BoF! I also think that to debate Machiavellian principles, one must be able to first spell Caesar correctly, however, it's just a personal theory I have about depth of study.

But on to the pressing question - I'm with Nighttimer on changing the court's powers of revocation partly because I think political cronyism will rise to whatever level it NEEDS to rise to rape the populace and secondly because I don't believe it (the change in needed votes) would ever be approved.

It is truly sad to see someone defending the conscience of a pre-Brown v. Board America. It simply proves that as long as there is life on earth, there will be people willing to push decency aside because of ignorance and fear. Judging from the outpouring of "Love" I see coming from the pulpits of the Falwell's and Dobson's, I feel as though dunking chair manufacturing companies may be good "growth" stocks to watch. Bet Cheney's already had meetings with Ken Lay about offshore dunking chair plants.

Might put a few bucks into Abu-Ghraib type dog collar distributors and wooden "stocks", too.

PACPanzer wrote:





Who is defending the "conscience" of a pre-Brown America? Where are you getting that from? Is it from Ol Sarge's comment that you can't litigate love and understanding? If that is where you are seeing a defense of the conscience of a pre-Brown America, you misunderstood his point. Or am I missing something here? Please clarify what you meant.

I don't think I misunderstood his thrust or meaning. He made the statement to which you referred AND prior to that line said this, "The nation is returning to pre Brown v. Board, for the reason the change was forced on the majority. "

The REASON for return revealed his true opinion that change forced on the majority was illegitimate even though it was a statement of conscience by justices at the time. We are FORCED to stop at red traffic lights and to drive certain speeds even though some of us may possess reflexes that shouldn't require those rules.

To say that we are returning because the majority was forced to abide by the decision is to basically say that it was wrong.

I maintain that our country's present conscience has changed from that pre-Brown v. Board conscience as a direct result of that decision. Once the FEAR of integration was overcome, the hurtful side of segregated education began to shrink. By no means have we reached racial equality or fairness for all, but decisions like Brown v. Board are necessary and good for the country. I disagree with someone who says they are not or who says we, as a nation are returning to pre-Brown v. Board ideals.

I certainly hope not. My apologies if I misunderstood but judging from the prior rhetoric about liberalism causing the fall of Rome, I don't think I missed a beat.

I will speak for myself to explain the spirit behind what I wrote, you can’t litigate love and understanding. I will ask hard questions like, was that case more important than gays being equal to the rest of society? How about women being equal to the rest of society? Where was the outrage when obvious Constitutional equal rights were placed on the public stage by saying gays, regardless of gender nor women can’t serve openly in the military combat units? If someone said my son or wife couldn’t do “something” every other citizen “could do” then I would be disturbed. Is it not apparent that millions of citizens were disturbed, along with their families by “don’t ask and don’t tell” and the Prez last week saying, gosh everyone knows women shouldn’t command really tough duty like combat units on the front line? I see no difference between the cases of Brown v. whatever and upcoming cases on the above subjects.

It, openly gay or women commanders of combat units, is simply a fruit that is not quite ripe yet, pardon the pun. Nor was the Brown case and as a result the majority and the minority are now “disturbed.” Had the decision been placed in front of the Congress for a vote, and then the decision been placed in “sunset” the “Democratic Republic” would shine equally towards Brown as it does to gays and women.

Sorry for misspelling the salad dressing, I’m a hayseed.

You may or may not be the self-described "hayseed" you proclaim yourself to be, Ol' Sarge, but what is quite apparent is that you have a serious issue regarding gays and women in the military. Through some incredbily contorted logic you have barely made a link to the central topic of judicial activism.

Oh, and if the intent of this particular remark It, openly gay or women commanders of combat units, is simply a fruit that is not quite ripe yet, pardon the pun was to be amusing it struck me as a dismal failure.

But IF (and "if" being the operative word) your intention was to satirize what a homophobe or sexist might say about openly gay or women commanders of combat units that was far more successful.

My link is, if the judicial isn’t using activism then why wait for the lawyers to act, save the folks some attorney fees and just bless a new law or say outright that Congress passed and the Executive Branch approved an unconstitutional law and place it back on their desk for action to correct.

I apologize to anyone whose feelings might have been hurt by my poorly chosen words to underline my position on the way society compartmentalizes different people’s rights.

I’m arguing with myself, knowing combat units would reject openly gay or women members or commanders. That doesn’t make it correct but it is just factual assessment from my experience in the military. Likewise, all kids have the right to have equality of schooling but Americans have discrimination in their blood when it comes to school already, even without race in the mix. School districts are divided into high and low tax support neighborhoods and prices of real estate and property tax are adjusted to create the better school for selected social classes. To abruptly change the mix of so many variables without debate on the “peoples” stage of congress isn’t representative government, it is King rule.

In Puerto Rico school districts are the same everywhere and the reason is because we have no property tax to support school, we have no property tax at all unless you own property without a house on it, or you own a second house for rental purposes of income. All the schools equally suck and some are worse because of the neighborhood social class but such a change here would not have impacted like it did in the US mainland.

Here there are no taxes placed on citizens other than state. The state funds each county, city and municipality according to population and area. The system seems to function and it is a less burdensome than the layers of tax collectors I faced in VA going to city for a sticker, paying county adjustments on property and tax at the grocery store.

Edited to add italic text.

While it is true troops would not like it, you are being very selective with your assesment of the miliatary as well- when orders of a behavior are frowned upon, that behavior is punished and punished harshly. When racism was no longer okay in the military, a great many troops didn't like it- but too bad, deal with it- that is your orders. If a few generals had to go to jail and have thier careers ruined in order to make an order stick- well good, we don't need bigots in high places anyway.

This is the same with the SC- the will of the poeple is NOT the over-riding concern, or poeples religious belief, but a higher calling of following the constitution- including, making some decisions the right wing will not like. The current administration, and with Reagan and Bush 1 as well, there has been a concentrated effort to foil this important check, and a full scale propaganda campaign against "liberal judges" in order to circumvent the system.

I see THIS as the downfall of our country more than any other attack we have endured.

Government by the people, for the people. If the peoples rights are not the priomary concer then the republic is lost because this is the very foundation of the republic and the constitution.

I agree some things the right and left will not like but they better be based on THE people as defined in the Constitution or the constitution is worth jack squat.

I don't mean stretching out a right from left field either.Example, abortion. That is an area clearly in the domain of the states. Its been judicially activist ed{if thats a word} out of the constitution and its clearly NOT there in regard to the federal government.

The SC is about to hear a case on eminent domain where people have had their property condemned without merit and taken to be handed over to PRIVATE developers to build malls and the like for more taxes. If this is upheld you better lock and load because one of the cornerstones of the nation was private property rights. If they take that away then the republic is dead and I guaranty that it will not be long before there is no private property of any kind for the people .

Try it this way.

The Second Amendment

To help clarify the issue of the second amendment to the Constitution of the United States of America the following items should be remembered.

Item Number One: (From The Declaration of Independence)

“ We hold these truths to be self evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness, -- That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the governed”

Item Number Two: (From the Constitution of the United States of America)

“We the people of the United States, in order to form a more perfect union, establish justice, insure the domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Item Number Three: (From the Constitution of the United States of America)

Article #4 Section #2

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

Item Number Four: (From the Constitution of the United States of America)

Amendment II (A.D. 1791)

“A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be infringed.”

Note nowhere does it say the right of a militia, National Guard or any
other military organization. Instead it is The right of the people. The governed.

Item Number Five: (From the Constitution of the United States of America)

Amendment IV (A.D. 1791)
“ The right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things seized.”

Item Number Six: (From the Constitution of the United States of America)

Amendment V (A.D. 1791)

“No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Item Number Seven: (From the Constitution of the United States of America)

Amendment IX (A.D. 1791)

“ The enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people.”

Item Number Eight: (From the Constitution of the United States of America)

Amendment XIV (A.D. 1868)

“ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Item Number Nine: (From the state of California Constitution)

Preamble:

“We, the people of California, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.”

Article 1 Section 1:

“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring. Possessing, and protecting property: and pursuing and obtaining safety and happiness.”

Article 1 Section 11:

“All laws of a general nature shall have a uniform operation.”

Article 1 Section 16:

“ No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall ever be passed.”

Article 1 Section 21:

“ The enumeration of rights shall not be construed to impair or deny others retained by the people.”

Item Number Ten: (From the constitutions of the individual states)

The following states clearly have in their Constitutions the right of the
“people” to keep and bear arms.

1) Alabama Article 1 Section 26
2) Alaska Art. 1 Sec. 19
3) Arizona Art. 2 Sec. 2 4) Arkansas Art. 2 Sec. 5
5) Colorado Art. 2 Sec. 13 6) Connecticut Sec. 15
7) Delaware Art. 1 Sec. 20 8) Florida Art. 1 Sec. 8
9) Georgia Art. 1 Sec. 1 Para. VIII 10) Hawaii Art. 1 Sec. 17
11) Idaho Art. 1 Sec. 11 12) Illinois Art. 1 Sec. 22
13) Indiana Art. 1 Sec. 32 14) Kansas Bill of Rights Section 1
15) Louisiana Art. 1 Sec. 11 16) Maine Art. 1 Sec. 16
17) Massachusetts Part of the First Art. XVII
18) Michigan Art. 1 Sec. 6
19) Mississippi Art. 3 Sec. 12 20) Missouri Art 1 Sec. 23
21) Montana Art. 2 Sec. 12 22) North Carolina Art. 1 Sec. 30
23) North Dakota Art. 1 Sec. 1 24) Nevada Art. 1 Sec. 1
25) New Hampshire Bill of Rights Article 2A
26) New Mexico Art. 2 Sec. 6 27) Ohio Art. 1 Sec. 4
28) Oklahoma Sec. 6 Para. # 26 29) Oregon Art 1 Sec. 27
30) Pennsylvania Art. 1 Sec. 21 31) Rhode Island Art. 1 Sec. 22
32) South Carolina Art. 1 Sec. 20 33) South Dakota Art. VI Sec. 24
34) Tennessee Art. 1 Sec. 26 35) Texas Art. 1 Sec. 23
36) Utah Art. 1 Sec. 6 37) Vermont Art. 1 Sec. 9
38) Virginia Art. 1 Sec. 13 39) Washington Art. 1 Sec. 24
40) Wisconsin Art. 1 Sec. 25 41) West Virginia Art. 3 Sec. 22
42) Wyoming 97-1-024

{I think it is safe to say that a preponderance of the states gave the
people the right to keep and bear arms. What seems to be a common
thread among these declarations of rights is the ability of the state to
limit the method of carrying of firearms off the property. }

Summation:

-The rights of people come from their creator and belong to everyone.
-The right of the government to govern comes from the people.
- The right of the people to defend themselves is undeniable.
- That the rights of people to have the same rights as people in other states is absolute.
- That in that defense of home they have a right to bear arms.
- That no law is to be passed that infringes on the right of the people to keep and bear arms.
- That the people are to be free of illegal search and seizure.
- That the people are to be free of self-incrimination. (We cannot be forced to fill out forms incriminating ourselves as recently reviewed and allowed by the Supreme courts.)
- That ex post facto laws, dealing with past actions of the people are illegal.
- That just because certain rights are detailed in the Constitution and others are not, that does not mean that people cannot posses other rights as of yet undetermined or stated.
- The enumeration of the rights in the Constitution does not limit the rights of the people.
- That if the people of other states have the right to keep and bear arms
then all the people of the United States do.
- That no state may make a law denying these rights to the people.

I am not a constitutional scholar, nor a lawyer; I am just an average citizen who has researched this issue to find out what the truth is.

The truth is that we the people, the source of the government’s power, are having our rights taken away from us in a slow creeping effort by our current politicians.

In my humble opinion the tail is wagging the dog as we say in Texas. The root causes of the problems of violence in America are being ignored for a quick and politically expedient solution. The laws of the land are quite clear, and for too long the citizenry has been made to bear the brunt of criminals in their midst. This land should be free of violence against any group; there should be a general feeling of security in the streets. Instead there is fear and we have the good honest people locked in behind their fences and doors, while the criminals roam free.

We don’t need “assault weapons” bans, we don’t need to have more gun control, we need less. We need to be able to carry our firearms openly in the land and to be able to assist the police or the highway patrol as called upon. We need to have the criminals locked up on the first strike, not the third. We need to stop the insane games being played that allow drug running gangs to run free killing at will. Bottom line, you commit a crime with a gun, fired or not, first time or not, not in your self defense, you go to jail for a long, long time, at least 30 years and it doesn't’t matter if you are 10 or 100 years old.

Why do I feel so strongly about this? It is my rights being taken away is one reason. Another is that a firearm has saved my life and the life of some my family. The criminals backed down and left without a fight or a shot fired! I am not talking fantasy, rather fact!

If this right given to we the people dies, then all the others surely will. If you don’t see that and turn to support the people, then we should enforce the power of change that is our right and change the government.

my 2 cents for what its worth.

You may call me a bigot after I’m finished but I will say the truth of such a transition as I see it. You are completely correct of the fact soldiers will follow orders passed down the chain of command and those refusing will be punished. There is a great difference between black male soldiers becoming equal to white male soldiers and homosexuals and females becoming equal to black and white male strait soldiers. If you can’t see that difference you have been brainwashed by some equality factor that says all people are equally beautiful, ugly, strong and macho from birth under order of the SC God rule.

I worked subordinate to a female commander in a staff job and she was undoubtedly gay and she was equally qualified for the job as her male counterpart. It was a support company filled with staff soldiers working in offices and the only place we had to follow her was in a morning four-mile run. Women have different physical requirements for upper body strength than men in the military, a form of discrimination for the same pay for politically correctness and without that discrimination just but a very few could qualify. It is like if failure is a score below 70 men fail but below 50 women fail, if we were talking mentality an “F” would be for men and an “G” for women. A 115-pound female soldier can’t body carry a 200 pound wounded male soldier out of field of fire equal to a man qualified for the same job.

Elite “macho” jobs like Special Forces, Airborne Ranger, Navy Seals or even a combat-combat service support unit in the 82d Airborne Division would lose its prestige as a dominate male macho role if women or gays were permitted to the club of elite, you have to volunteer for those jobs requiring special skills. The incorporation is equal to putting rugged firefighters in a miss America pageant; the girls wouldn’t want to be part of it any longer either.
Gays nor women will join the elite clubs of combat soldiers for it would no longer be elite, the snake eaters would just quit and lead a Girl Scout troop first.


If gays or women litigate with the SC and win you may see it personally up close and personal because you or your family will be drafted to replace the macho types that will depart and you will have your equality. But still when the macho types are drafted they will not follow a gay leader or fight along side a gay soldier and such leader or soldier will be the first friendly fire casualty in hostility.

I can't really believe you are saying this. Soldiers are supposed to follow lawful orders. Are you suggesting that leaders unacceptable to the "macho" types be murdered? This sounds like grounds for court martial and possible execution. You are talking about and seem to be giving approval to criminal behavior.

It is strange you should mention the next President of the United States in talking about the topic associated with the SC. An article published in the Wall Street Journal on 25 Jan. 05 talked about this very issue. In the article exist a plan to cause the Democratic Party to “go nuclear” by forcing up or down votes for judicial nominations using Senate rules to force judicial floor nominations to be voted on by a simple majority.

On the question for debate:
What do you think of a constitutional amendment that would require the Court to have a supermajority of justice’s sign on to any decision where it is overturning a democratically enacted law?
What happens if there is a vacancy on the SC? Does it continue to function? How about two or even three vacancies on the bench?

Without a functional SC federal judges will make judgments, like the one on trial rights of Gitmo detainees the other day and the ruling will stand. Or, a conservative federal judge could hear a case like Roe v. Wade and find it unconstitutional and absent of a functional SC it would stand as law. To change the “law” as interpreted by a federal judge congress would have to create “law” in their view of law using a majority vote in absence of a functional SC.

Clearly the Democrats do not want to see the nominations they filibustered in last session confirmed and will force the rule change and in result the filibuster will fail to stop the appointments.

Also clear in Republican Party’s mind is the “fact” the Democratic Party would filibuster one of these same judges from being nominated to the SC and here a two-thirds vote will still exist. The result is the republicans will force an up or down vote knowing they will never get a conservative judge past the democrats into the SC. By doing so the republicans will null the value of the court and paste a sign of obstruction on the backs of liberals. A spin off of the highly televised sideshow will be Senator Majority leader Bill Frist becoming a national figure as he throws his hat in the ring for 2008.

Will the Republican Party majority gamble the end of filibuster rule change considering how it may be used when the Democratic Party would once again gain power? I think they will and the SC vacancies will stay that way until either the republicans or democrats hold a two-thirds majority in the Senate to approve an appointment. In the meantime activist federal judges will judge “laws” and then majority in congress will change laws as SC justices die off one by one.

Should such a situation occur I think a constitutional amendment that would require the Court to have an UNAMIOUS decision by justices on any decision where it is overturning a democratically enacted law would be the only alternative?

Question for Debate:

What do you think of a constitutional amendment that would require the Court to have a supermajority of justices sign on to any decision where it is overturning a democratically enacted law?

Nope, nope, nope. Part of the job of the Supreme Court is to uphold or overturn democratically enacted laws. It is a crucial part of the checks and balances system. While I agree that the Supreme Court should not create laws, upholding or overturning them is in the job description. No adjustment needs to be made.

I think a supermajority among justices is perhaps a good start, but I also think there might be alternatives that could be more consistent with our nation's legal traditions. For example, it is common for juries in criminal trials to convict only when they can return a unanimous verdict in the interest of removing any hint of reasonable doubt. In the case of the Supreme Court, a unanimous verdict in a Judicial Review situation should certainly be ample to reign in a runaway Congress, even to those who would assert that a supermajority of the Court is too easy to muster.

For any split decision of the court-- in other words, where the Court expresses reasonable doubt through one or more dissenting or abstaining justices, then I think the most democratic branch of government should at least have an opportunity to help resolve the reasonable doubt, perhaps in the same way as the Constitution provides for Congress to override a veto-- if at least one third of one chamber of Congress agrees with the majority of the Court, then its decision stands. Otherwise, if the Court can't even convince one third of one chamber of Congress to agree, then a good case can be made that perhaps it is the majority of the Court that is being unreasonable.

Some might say my counterproposal would give to much power to Congress, and they might be right, but the only time the Constitution ever mentions any branch of government being able to overrule a law (veto), it provides Congress a second chance just in case the other branch of government is wrong. I think for the Constitution to be consistent, if Judicial Review is put into the Constitution at all, it should be balanced the same way as the veto, with the provision that if there is no reasonable doubt in the Court, then they can still prevent Congress from getting a chance to overrule.

Also, I think such a solution would not necessarily have to require any litmus test limiting a Congressional check against Court rulings to only instances of Judicial Review, because in the event that a Court is subject to being overruled, that Court might not be the most unbiased arbiter of whether it is susceptible to being overruled.

It is sufficiently difficult to get two thirds of both houses to agree on anything that even allowing for the possibility doesn't do much to take power away from the Court, it simply makes the "representative democracy" side of government the final authority rather than the "judicial oligarchy" side. We are well served by both sides-- the only question is, can we honestly call ourselves a "representative democracy" when the "judicial oligarchy" side of government has ultimate authority over what does and does not qualify as law? Maybe we can, but it seems a little iffy to me.

I think the way things stand, the overarching organizational characteristic of American government is as a judicial oligarchy that has representative democracy as a secondary component. I think most of us would be more comfortable if we could more confidently say we are primarily a representative democracy that happens to benefit from a the stabilizing influence provided secondarily by a judicial oligarchy, as the framers appear to have intended, and I think to achieve that, you have to at least provide the possibility, however remote, that the elected representatives of the People can have an opportunity to overturn the dictates of a small group of lifetime appointees.

Don't get me wrong, I like a strong Court that can easily and effectively reign in the whims of narrow majorities that come and go in Congress from year to year, but I also think there is a serious structural problem in any government that intends to be a representative democracy, yet makes an unelected panel the final arbiter over law without giving elected representatives an opportunity to similarly reign in a Court that currently wields the closest thing to ultimate power anywhere in the so-called free world.