May 7, 2002


CONSTITUTIONAL AMENDMENT (Eugene Volokh, May 06, 2002, The Volokh Brothers)
Here's a completely unrealistic but possibly amusing thought experiment -- imagine that you had the superpower to add one amendment to the U.S. Constitution. ... What would it be? [...]

The amendment will also be repealable through the normal process -- if the repeal gets ratified by 3/4 of the states, and is proposed by a 2/3 vote of each house of Congress or a constitutional convention called by 2/3 of the states, then the amendment will vanish. So don't choose something that's too out of step with public opinion, since it will just get promptly repealed. Decriminalization of cocaine and heroin, for instance, would probably be stymied by this, whatever its merits might be in your own opinion. (Technical note: To prevent self-entrenching amendments, assume that the amendment will be repealable under currently-existing constitutional procedures and voting rules, even if it purports to change those procedures and rules.) [...]

The goal of this little game is creativity, both in identifying the best problem to solve, and in solving it in a practically useful way given the constraints listed above. A few procedural details:

1. If you think you have a good answer, e-mail it to me at with (a) the subject containing just the word "Amendment", (b) the text of the proposed amendment, and (c) a brief explanation of why you think this proposal will be good, effective, and better than the alternatives.

2. I will blog some of the best solutions I get, as well as some that I think would be unsuccessful or problematic in interesting ways. If I say generally nice things about your proposal, I'll use your name; if I say mostly negative ones, I won't.

3. I'm afraid that if I get enough proposals, I might not be able to respond to each individually; my apologies in advance if that indeed proves to be the case.

4. You of course don't need to be a lawyer to play, but try to think like a lawyer. Think of the ways the proposal might be misinterpreted by judges, and draft it as carefully and precisely as possible.

Here's mine :
(a) The Supreme Court shall have the power to issue advisory rulings on legislation that is proposed in Congress. Having once issued such a ruling, should the legislation become law (and provided that it did not become law by overriding a presidential veto), the Court shall have no authority to review the constitutionality of said law.

(b) When the Court shall rule on the constitutionality of any other legislation (provided that it did not become law by overriding a presidential veto), a supermajority shall be required (2/3rds) in order to rule the law unconstitutional, and said legislation shall be resubmitted to Congress in unedited form and if reapproved by a super majority (2/3rds vote) in the House and a simple majority in the Senate and re-signed by the President, said legislation shall be presumed constitutional and the Court shall have no further authority to review said law.

Since John Marshall took upon himself and the Court the authority to review the constitutionality of laws and executive actions, the final arbiters of our Constitution have been the small handful of men and women who belong to our least democratic institution, the judiciary). For the better part of a century that didn't matter much, but like any unchecked power it began to be abused and under the Warren and Burger courts we reached a point where the Supreme Court became a kind of super legislature, rewriting the Constitution to suit their whims (particularly in the realm of criminal law, privacy, and voting rights).

This amendment would provide a means of restraining the Court without taking it out of the game altogether (which would run the equally unsatisfactory risk of unleashing a tyranny of the majority).

Posted by Orrin Judd at May 7, 2002 7:12 AM
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