The bad in Governor Greg Abbott’s constitutional amendments
posted at 9:21 am on January 11, 2016 by Taylor Millard
Texas Governor Greg Abbott’s decision to propose nine amendments to the U.S. Constitution is all about protecting the 10th Amendment. Abbott rightly believes in limiting the power of the federal government and cutting away as much bureaucracy as possible. I’ve already written why there are some really good things in Abbott’s “Restoring The Rule Of Law” plan, which the states should consider passing because of the fight against the leviathan. The governor (who I happily voted for in 2014) has given a lot of thought to his proposal and should be praised for stepping into the spotlight on this. However, there are several proposed amendments which could do the absolute opposite of what Abbott hopes they will do.
Abbott is extremely worried about the Supreme Court of the United States’ ability to “create law” when they have no right to. A lot of this has to do with Chief Justice John Roberts’ two decisions on Obamacare where he declared it a tax, even though it wasn’t. Abbott’s concern is viable, and it’s important to note judicial review isn’t even in the U.S. Constitution but was created by Chief Justice John Marshall in the Marbury v. Madison decision. Abbott’s solution is simple: allow a two-thirds majority of the States to override a U.S. Supreme Court decision through an assembly of states (emphasis mine).
But once the super-majority requirement is met, the assemblies could overturn the Court’s decisions in whole or in part. They could overturn the Court’s decisions retroactively or prospectively. They could vitiate the precedential effect of the Court’s decisions and remand cases to the Supreme Court for further proceedings. In short, the assemblies would restore the people—rather than five unelected jurists—to the role of the truly supreme arbiter of the Constitution.
To those who complain that this part of the Texas Plan is extreme, again, the Constitution supplies the reply. From the beginning, the people acting through their respective States were supposed to have control over the Constitution. Article V allows the state legislatures to propose a constitutional amendment, and it can be ratified by a three-fourths vote of the state legislatures or state ratifying conventions. The Framers were deliberate in vesting the people (and their closest representatives, namely, the state legislatures) with the power to amend the Constitution. The people have been robbed of that authority if the Supreme Court can change what the Constitution means with the stroke of a pen. The Texas Plan restores the people’s control over their Constitution by giving the States the power to fix errant Supreme Court decisions.
The problem is Abbott forgets what could happen if the wrong people get in power. Say a majority of states decided to pass laws which mandated “trigger warnings,” and required all protests to meet “certain requirements” before they could be put on. The Supreme Court should obviously rule against these laws citing the First Amendment, and freedom to assemble, and the 14th Amendment. But under Abbott’s proposal, the states could band together and overrule SCOTUS’ decision if they disagreed with it. This is actually limiting freedom, instead of promoting it. The states could also band together to overturn the Citizens United decision, under the idea they want to keep corporate money out of politics. It’s here where Abbott’s idea the states can “fix errant Supreme Court decisions,” is actually a double-edged sword which can come back and be a death knell to the freedom Abbott so loves. The same goes for his idea “the states” should be able to overturn a federal law they disagree with. What if the federal government decided to pass a law which gradually eliminated Social Security or allowed people to put their Social Security money in a private account? What’s to stop two-thirds of the states from calling together a gathering to overrule that law? This is the danger of the Abbott’s proposal. As state and local governments start getting larger and larger (and make no mistake, it’s happening), they can limit the freedom of their residents more and more. The better, and more long-term solution, is making sure to elect politicians (at all level of government) who WILL follow the Constitution, love freedom, and won’t try to grow government. Abbott’s suggestions are honorable, but he’s unfortunately forgetting there will be other states which will disagree with him.
The other problem with Abbott’s proposal is the idea there should be a super-majority of seven votes in all Supreme Court cases. The suggested constitutional amendment is probably being done to push back against 5-4 SCOTUS decisions like Obamacare and gay marriage. Abbott’s reasoning for the super-majority make sense on the surface.
It takes a clear super-majority of States to ratify an amendment though the Article V process—so why does it only take a bare majority of Supreme Court justices to accomplish the same thing? It cheapens the rule of law—and encourages circumvention of the Constitution’s amendment process—to allow five justices to overrule constitutional precedents and invalidate democratically enacted legislation.
The Texas Plan fixes that anomaly by imposing the same super-majority requirement for Supreme Court decisions (three-fourths) that Article V already imposes for constitutional amendments. Not only is a super-majority already required by Article V, a super-majority also is a familiar requirement for courts. Every criminal jurisdiction in the United States requires a super-majority (if not complete unanimity) of jurors for criminal convictions. The purpose of those requirements is to mitigate the risk that a bare majority would get the answer wrong. If that concern is valid in individual criminal cases, and everyone agrees it is, the same is certainly true for the highest legal question our system ever could ask—namely, whether a particular thing is or is not unconstitutional.
Abbott also uses the Nebraska and North Dakota Supreme Courts as examples of where super-majority votes work. He has a point, but Abbott forgets cases where a 5-4 vote went in favor of freedom and/or states rights. The Citizens United, Heller, and McDonald decisions were all 5-4, as was Ricci vs. DeStefano and Shelby County vs. Holder. The Butler decision of 1936, which ruled the Agriculture Adjustment Act was unconstitutional, was 6-3. None of these landmark decisions would have happened under Abbott’s proposed amendment. It’s obviously extremely frustrating for both sides of the aisle to watch “Supreme Court Theatre,” and try to figure out which judges will vote which way, but there are plenty of times when SCOTUS has ruled in favor of freedom without a super-majority. It would be unwise to put the super-majority in place, even if there have been decisions conservatives and libertarians believe the court failed in their rendering. There have been plenty of times when the narrow victory went towards freedom, and Abbott’s idea could possibly reduce the chance for similar victories, no matter how narrow they might be. It would also put more emphasis on lower court rulings and might lead to more “packing” and politicizing of the courts (as if there isn’t enough already), instead of focusing on actual issues. This is why Abbott is wrong here, even if the super-majority seems to make sense. The only way this might work, is if Abbott is hoping most court action over laws stays in state courts. That might work, but it also might not. It’s probably best to stay with the current voting rules for a SCOTUS decision, despite the theater.
There’s nothing wrong with the governor deciding to put these proposals forward, and it’s good to have a debate on them. The Texas Plan is a very well-thought out document, and obviously something Abbott spent a long time putting together. But Abbott is mistaken in his belief that allowing states to overturn federal law or Supreme Court decisions and requiring a super-majority of SCOTUS votes will actually solve the problem the U.S faces when it comes to the overreach of the federal government. It would be better to play the long game, and try to get more small government, pro-freedom politicians elected (and keep them accountable) than pass populist amendments which could blow up in the country’s face and hurt more than help.