Proposals for a Nation gone off-- Limited Government, Limited Judiciary

 Limited Government, Limited Judiciary

Here we note a distinct lack of direction for the court in our very Constitution.  There can be found no indication there of how or even if the court is to review and overturn legislative acts, no guidance for reviewing state court cases, no indication that a jurisdiction is established over every criminal proceeding.  The Section on the judiciary branch is the shortest in the Constitution

A limited government needs explicit powers set out.  Without this detail the court has too often throughout its history simply arrogated to itself whatever role it could get away with and over time built upon this dubious foundation.  The time is long past for delineating via constitutional amendment what the court may and may not do and how that power granted is to be limited by the other branches.  While limitation of the judicial branch implies to many political influence over the courts, the courts have not themselves been in any way apolitical.  A careful thou shall not will benefit the individual and state.

Amending the Judiciary:

The court is established as nine justices.  If a judge must recuse himself, a lower court judge will hear the case in question after being selected by lot.  Failure to recuse where appropriate is an impeachable offense against blind justice.

The court shall overturn no state law without unanimity.  If a law or practice is not clearly, distinctly and immediately obviously unconstitutional, it is constitutional.  An experimental democracy does not have to kowtow to the dishonest opinions of five unelected judges, products in the main of only one or two blinkered university cultures.  Nine of nine must vote to overturn a law or practice.  Any disagreement on the court should be considered a political disagreement and that disagreement should be resolved in the realm of persuasion -- i.e., politics.

Laws and practices older than five years are not reviewable.  It should not require 120 years to figure out if something is suddenly unconstitutional.  The constitution does not evolve, it is amended where needed.

The application of death penalty in any given case is not reviewable by the federal judiciary.  They may only find a defendant innocent (if he is so) and set him free altogether.  

As a side note to the emotional issue of the death penalty, it should be noted that the words cruel and unusual as they appear in the Constitution do not stand as a hendyades for muddleheaded thinkers but each word refers to a distinct idea.  A cruel punishment is one deigned to inflict needless suffering -- no doubt a holdover from more physically vengeful times.  An unusual punishment refers to one designed by the fancy of a judge to fit the crime (i.e., if you killed a man with an ice-pick so shall you die by one).  The primary fault with cruel punishments is that they are inhuman, with unusual that they offend the universalist objectives of justice.   

To return to our reform of the judiciary, a judge may not serve until the age of 50 and will be retired according to the following formula:  every two years the oldest judge will step down.   If a vacancy falls between the appointed biennium, the seat shall be filled case by case by lower court judges selected by lot.  The same method as used to fill vacancies where a recusal has taken place.  Nine judges must hear every case.  This will provide some useful leveling for our Supreme Court.  It will also ensure that in every presidential and mid-term election there will be a vacancy on the court that must be filled.  More debate is better, especially during office seeking season.  The court’s composition will be spread over several administrations, four and a half terms will go to make up the nine.

Each justice is allowed one clerk and one secretary.  The clerk may serve for one year.  The resources to extend judicial powers will not be granted.