We Don’t Need to Invoke Article V to Rein in Radical Judges

James W. Lucas argued at American Greatness recently that the solution to lawless, radical judges is to be found in “reviv[ing] the people’s ultimate control over the meaning of our foundational document by reforming and updating the amendment process.”

Lucas observes correctly that, contrary to the founders’ intent, “the Supreme Court has become the Constitution.” What he means is, “[t]hrough judicial interpretation, the Supreme Court has gained the power, essentially, to rewrite the Constitution as it sees fit.” Not only that but “the court’s revisions cannot be reversed or challenged”—creating a situation which, unsurprisingly, generates intense partisan rancor over both its composition and decisions.

It’s true that Lucas’s proposed solution would work—but only if we could actually pass an amendment to amend Article V. It’s not at all clear how we could do so under the current procedures, which Lucas concedes make the U.S. Constitution by far “the most difficult charter to amend in the world.” 

Given how polarized the country is at this moment—and with the Democrats constantly attacking basic constitutional norms, including equal representation in the Senate, the legitimacy of the Supreme Court, and the very existence of the Electoral College—it seems unwise and imprudent to make the Constitution even easier to amend.

The Constitution should be amended only when there is supermajority support for doing so, and if we are going to tinker with that process, we should only do so when there is already broad, society-wide agreement on justice and the common good. Amendments are generated by a largely unified polity that already agrees on much; they do not create such unity and agreement.

But that does not mean that we have no choice but to lay supine before lawless federal judges, particularly those of the Supreme Court, and passively accept whatever distortions they introduce into our fundamental law.

We have more options to get a handle on this situation besides impeaching judges and/or selectively stripping the appellate jurisdiction of federal courts. Right now, the political branches can exercise the inherent authority they already possess—a power that’s grounded in the political philosophy of the Declaration of Independence and inherent in the Constitution’s separation-of-powers principle—to counteract anti-constitutional court decisions through ordinary legislation, thereby returning the country to the legal status quo ante.

The Declaration is the very “ground and foundation” of the Constitution. Its famous second sentence is indispensable to a proper understanding of the Constitution. The Declaration teaches that all legitimate political authority originates and flows from the sovereign people to their government, not the other way around. In other words, the American people are sovereign, and any and all authority exercised by our government—whether it be federal, state, or local—is delegated to it by the people’s consent. 

The Constitution, which is designed to secure our “safety and happiness,” makes our consent real. It serves those great ends (“the alpha and omega of political life”) by enabling our experiment in representative self-government; protecting our natural, civil, and political rights; and securing our natural liberty by limiting government to its proper spheres of action.

Further, the Constitution is the nation’s fundamental positive law and is therefore outside the reach and control of any of the three branches, which are subordinate to it; this is why, pace Lucas, it is conceptually impossible for the Supreme Court to “change” the Constitution’s meaning, even if every June we all act as though its decisions can and do.

This very brief exposition of the connection between the Declaration and the Constitution allows us to apprehend a correlative truth: There is a hierarchy of institutional governmental power. And because proximity to the people is directly correlated with greater authority in matters of governance, the closer a governmental institution is to the people, the more authority and power it has. 

Thus, the political branches, which are in various ways and to varying degrees popularly elected by the people, possess more authority than do both the lower federal courts and Supreme Court, whose compositions are both refracted by the appointments process on the front end and made less responsive to the public on the back end because of the judges’ and justices’ life tenure.

The conclusion of this argument is not as radical as it might seem. Canada’s constitution contains a “notwithstanding clause” in Section 33 of its Charter of Rights and Freedoms (which is the rough equivalent of our Constitution’s Bill of Rights). Under the notwithstanding clause, a Canadian legislature can pass a law that expressly, brazenly, and obviously violates the Canadian constitution so long as it announces before it passesa law—or after a law has been reviewed by a court—that it will pass said law “notwithstanding” whatever the Canadian constitution says. (These exemptions can last for up to five years at a time; if an exemption is not renewed, it expires, and the legislation is consequently invalid if it, in fact, violates the constitution.)

Simply put, the political branches in America have a similar power (albeit one that is not explicitly provided for in our Constitution as it is in Canada’s), namely, the power to counteract erroneous court rulings by operation of their basic constitutional authority and duty to pass laws. Moreover, this power is similar in kind, even if not quite in scope, to Congress’s plenary authority over federal statutes. Congress, at least in the modern era, frequently (and uncontroversially) exercises its power to amend its statutes in the face of Supreme Court decisions that it believes have wrongly interpreted them.

Besides an implicit commitment to judicial supremacy—or, the “imperial judiciary,” as Senator Josh Hawley (R-Mo.), following Antonin Scalia, has dubbed it—there is simply no justification for ceding final authority over the meaning of the Constitution to the Supreme Court as we’ve done for decades. We also have no reason to think that only the (rightly) extraordinary invocation of Article V, whether it be modified or not, can overturn a Supreme Court decision. 

In fact, the best, most proper keepers of our fundamental law are We the People’s elected representatives—because they are closer, more accountable, and more responsive to us than are insulated, life-tenured federal judges. And they can act tomorrow to correct whatever errors they believe the courts have committed.

In this truly revolutionary moment, with perhaps the most important election in our lifetimes just under two months away, it’s time for us to relearn the things that make America exceptional. And resisting the ever-growing reach of the courts into every facet of our lives by properly reasserting the primacy of the people’s political control over our Constitution is as good a place as any to start.

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About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

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