And this is why our nation is so terribly out of balance.
The reason the constitution worked so well for so long was less because of the invention of new amendments, but because it was originally devised as a three-power system of balances of power between groups of people, each of whom would act as checks on the others.
The balances that most people recognize are first, the balance between the executive, legislative, and judicial branches of the federal government.
Then, as it was originally intended, there was supposed to be a balance between the people, who selected the House of Representatives (thus its nickname, “The Peoples House”), the States, who selected the Senators, and the Electoral College, that selected the President.
A spinoff of this was that the President selected the justices of the Supreme Court, but the senate, and thus the States, would have to confirm these justices.
There was a third balance, and it was critically important, but it has been discarded, creating many of the problems we have today.
This was the balance between the federal government, the State governments, and the people.
After the Civil War, it was realized that the States and the federal government were so equal in relationship to the people, that there was a need, created in the 14th amendment, for the federal government to be able to intercede to protect the people, from an abusive State government.
(Justice Thomas recently wrote a brilliant, 100-page defense of this “privileges or immunities” clause of the first article of the 14th amendment in the McDonald v. Chicago gun rights case. Likely out of concern that the “naturalization” clause of the first article may be thrown out, because of illegal alien “anchor babies”, and Justice Thomas did not want to see “the bathwater thrown out with the baby”, as it were.)
In any event, with the passage of the 17th amendment, the Direct Election of Senators, the States have lost the power to protect their citizens from an abusive federal government, *and* the States can no longer prevent federal growth to ridiculous levels.
And this is why our nation is so terribly out of balance.
The federal government will never, ever, reduce itself. It just cannot muster the ability to do less and spend less. But the only existing means for the States to get a handle on the out of control federal government is a constitutional convention, which has become an almost impossible thing to do.
But there is one thing the States might be able to do to restore balance to the entire system. A constitutional amendment to create a body that, at the direction of the States, can trim the federal government at will.
A constitutional amendment to create the Second Court of the United States.
Not a federal court, but much like a mirror image of the original US senate, composed of two judges appointed by each State legislature, judges serving concurrent terms with each State’s senators.
The 2nd Court of 100 State judges would be in between the Supreme Court and the federal District Courts in authority. Importantly, it would *not* decide the constitutionality of laws, because this is a federal court responsibility. Instead, the 2nd Court would determine the *jurisdiction* of cases appealed to the SCOTUS.
Each year, the 3600 US federal judges send some 8,000 cases on appeal from the federal District Courts to the SCOTUS. This is because even the lowest federal judge may assert that a local or State trial has a constitutional, and thus federal issue.
And nobody can tell them otherwise. Which results in enormous growth of federal judicial power, which needs to end.
But after reviewing what the lower federal judges decided about the constitutionality of a case, the 2nd Court could look at the federal case and say,
“There is no constitutional question, here. Thus the case is returned to its State of origin, and the judgment of the State court.”
This would likely “de-federalize” 7400 of those 8000 cases going to the SCOTUS every year.
And while the SCOTUS can only hear a few dozen cases each year, out of that 8000, instead of first reverting to the decision of the federal District Courts, cases the SCOTUS rejected would revert to the decision of the 2nd Court.
Which pretty well would restore the judicial branch to balance. But what about the executive and legislative branches, and federal the bureaucracy?
They would be actively trimmed by the one “original jurisdiction” of the 2nd Court. That all lawsuits between the federal government and the States, one suing the other, would be first heard in the 2nd Court.
This would mean, for example, if the Obama administration sued Arizona over its SB 1070 anti-illegal immigration law, the case would immediately go to the Second Court of the United States, where judges appointed by the States would determine the outcome.
This would give the States the ability to slash the size and scope of the federal government, as long as a simple majority of the States agreed that the federal government was acting in a non-constitutional manner.
Thus 26 States could decide to end the Department of Education, for example. And while this could still be appealed to the SCOTUS, if say, 2/3rds of the States decided one way, then the decision was final and could not be overturned.
This would give the States the *power* of nullification, but within reason. The power to trim the federal government down to size.
Excellent post, yef.
>>This would likely “de-federalize” 7400 of those 8000 cases going to the SCOTUS every year.<<
When I review just who is elected locally and where their policies have taken us I am not confident they would appoint conservative judges to the 2nd Court, composed of 100 State judges. Looking at state senates and seeing the difficulties they are having reducing their state budgets is reason for further concern.
The result would be that cases seen as favorable to Communists would be green-lighted for a rubber-stamp by the Supreme Court, with no backlog to get in their way; cases which would supply good grounds to hold back Federal power would be cut off at the knees.
The *real* answer would be to enforce the laws against Treason, and thereby execute a large number of Communist moles and usurpers; but by not going after the leaders of the student protests, Jane Fonda, and so on, during the 60's, the powers that be have rendered such actions a practical impossibility (the Overton window has shifted far to the left).
NO cheers, unfortunately.
