Amending the Constitution

A columnist on Yahoo! recently posted a list of 7 ways Governor Rick Perry (R-TX) would like to change the Constitution. Of those seven, only two are ones with which I agree. I’ll link to blog posts describing my agreement rather than reiterate that here, but the others I’ll go into detail.

Before going into the list, there is one point of discussion I want to address first: be wary of anyone who says we should amend the Constitution, and question thoroughly if how they want to amend the Constitution is a legitimate reason. Two of Perry’s ideas are illegitimate reasons to amend the Constitution and should never be considered at all. But beyond this, given the ideas he has, I’m certainly glad the amendment process is intentionally very difficult: two-thirds of a quorum of both chambers of Congress plus the legislatures of 38 of the 50 States.

So let’s get into this list and discuss why five of these ideas are bad ideas.

1. Abolish lifetime tenure for federal judges by amending Article III, Section I of the Constitution.

Article III, Section I of the Constitution establishes the Federal Judiciary and states clearly the tenure of Federal judges:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The first sentence is pretty straightforward: the Federal Judiciary will be comprised of one Supreme Court (the Supreme Court of the United States), and various inferior Courts that Congress establishes. Congress has established the various District Courts and 12 Circuit Courts of Appeals, among other specialized Courts.

But the Constitution establishes the judges to have a lifetime tenure with a salary that can never be decreased. Why? To prevent Congress or the Executive Branch from using such as intimidation over the Judiciary. The Judiciary is the safeguard of the Constitution.

By removing said safeguards from the Constitution, Federal judges would be open to the same kind of intimidation that we saw in Iowa this past election cycle when three of Iowa’s Supreme Court justices were removed by popular vote purely because they had the audacity to write a decision that said that Iowa’s prohibition of gay marriage was unconstitutional. Several religious conservative groups campaigned successfully to have those judges removed – and a very dangerous precedent was set in the process.

Lifetime tenure for Federal judges and the requirement of the standard impeachment process for removing them is a necessary safeguard against intimidation by Congress, the Executive Branch, and the People against the only branch of government entrusted with safeguarding what gives them that lifetime tenure: the Constitution.

2. Congress should have the power to override Supreme Court decisions with a two-thirds vote.

Governor Perry should now be named the most dangerous politician in the United States. Quoting Governor Perry’s book:

[A]llow Congress to override the Supreme Court with a two-thirds vote in both the House and Senate, which risks increased politicization of judicial decisions, but also has the benefit of letting the people stop the Court from unilaterally deciding policy.

The Court does not decide policy, only if any implemented policy is in line with the Constitution. This means that, as I have said before on this blog, the Courts may overturn what the People want. How many times do I have to say this: where the will of the People and the Constitution are found to be in conflict, the Constitution wins, every time.

In allowing Congress to overturn Supreme Court decisions, Congress could muster support to overturn any Supreme Court decision, even ones wherein what Congress sought was in clear violation of the Constitution. I think when Governor Perry made mention of this idea, he was being extremely short-sighted, looking only at decisions like Roe v. Wade (arguably probably top in his list), Lawrence v. Texas, the various decisions against prayer in public schools, and the like.

But what if Congress decides to go after Miranda v. Arizona, which establishes the Miranda rule? Or Gideon v. Wainwright, which established the rule wherein indigent defendants must be provided competent counsel at the cost of the Court? Or, more recently, Ring v. Arizona, which strengthened the role of juries in criminal trials?

Let’s fast forward a little in time and presume that the Supreme Court declares unconstitutional the Patient Protection and Affordable Care Act of 2010, also known as “Obamacare”? Then the People vote in Democrat supermajorities into both houses with this kind of power sitting in the Constitution. Such a Congress would have the power to overrule the Supreme Court and Obamacare is once again legal with no ability for the Court to nullify it.

When you give such a power to Congress, the Courts lose their ability to keep Congress in check, and that is the principal power of the Courts. When you give such a power to Congress, the Constitution and the Bill of Rights become irrelevant. And when such becomes the case, we have tyranny.

I know Perry doesn’t like how “liberal activist judges” have ruled in the past, but that does not justify gutting the power of the Judiciary.

3. Scrap the federal income tax by repealing the Sixteenth Amendment.

I’m in favor of this simply because I don’t like nearly 40% of my salary disappearing to the various taxes. Income taxes were meant to be temporary, but when you give the Federal government a cookie, it’s going to want more cookies and a jug of milk to go with it.

4. End the direct election of senators by repealing the Seventeenth Amendment.

I’ve discussed my support for this notion in great length: “Advice and consent

5. Require the federal government to balance its budget every year.

I’m mixed on this notion. On one hand, it would require the Federal government to have the same fiscal accountability the States have imposed on themselves already, but on the other hand, I consider it an unnecessary constraint. In overturning the Line Item Veto Act of 1996, which statutorily created the power of “line item veto” that was exercised by President Clinton, Justice Anthony Kennedy stated in his concurring opinion, “Failure of political will does not justify unconstitutional remedies.”

While an Amendment to the Constitution requiring a balanced budget and restricting Federal spending would create a constitutional remedy, it would be a remedy to an obvious failure of political will. I would expand Justice Kennedy’s words to say that a failure of political will does not justify necessarily amending the Constitution.

6. The federal Constitution should define marriage as between one man and one woman in all 50 states.

I’ve discussed in part why this is a bad idea already: “Responding to the Republican platform – ‘Traditional marriage’“. Look for the section called “Amending the Constitution”. While you’re at it, read the section called “Restricting appellate review” to see another way Perry and other Republicans would like to stifle the ability of the Courts with regard to reviewing government actions. In short it’s about ignoring the problem and shortcutting to a “solution” because they think they know what’s best.

And yet Republicans accuse Democrats of trying to do the exact same thing. Hypocrites!

7. Abortion should be made illegal throughout the country.

Like the Prohibition amendment (Eighteenth Amendment), this could end up doing much more harm than good. “Speakeasies for abortions” could end up once again being commonplace as they were when abortion was illegal prior to several States legalizing it in 1970 and the Supreme Court decision in 1973.

Such an amendment, and the situations that would arise in its wake, would neuter and likely reverse the current downward trend in the abortion rates. I believe, and will discuss at length later, that abortion and poverty are closely tied together. So one effective method to continue to reduce abortion with the potential aim to virtually eliminate it is to bring those who are obtaining the abortions out of poverty. Now not everyone who obtains an abortion is impoverished, but the vast majority have incomes at less then 200% of the poverty rate.

Abortion is not a black and white issue. It has quite a few gray areas, but Perry shows he is willing to shortcut right to what he feels is the solution to that issue: amending the Constitution.


In short, Governor Perry needs to go back to college and restudy the Constitution. Given he recently used the Office of the Governor of Texas to promote religion, this need is not surprising. Most of the points above where he wants to see the Constitution changed solidify this need.

In short, Republicans accuse Obama of wanting to bypass Congress to get what he wants, yet Republicans want to bypass the Courts to get want they want.