More on Congressional Override

I noted Friday that Rep. Ron Lewis has introduced legislation to allow a super majority in Congress to override a Supreme Court finding that a particular law is unconstitutional. So far I have found little commentary on this in either the press or the blogosphere. How Appealing notes without comment that an editorial in the Las Vegas Review Journal calls this a very bad idea. But the article in question does not so much argue as merely assert that this would be unconstitutional and a violation of the principle of checks and balances. The latter is by no means a foregone conclusion, however, since it is at least equally arguable that the current policy of the Court is producing legislation by judicial fiat, upon which there is currently no effective check. And the requirement of a 2/3 super majority is certainly considered a balance in the case of overriding a presidential veto, so I don't see that applying the same principle to the Court would be necessarily unbalcing.

But is this legislation unconstitutional? The doctrine of judicial review was first established by Chief Justice John Marshall in Marbury v. Madison (1803). "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule ... This is the very essence of judicial duty." In this decision he was echoing the words of Alexander Hamilton in Federalist 78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The difficulty is that this doctrine is not explicitely stated in the Constitution itself. Furthermore, the charge is that the Courts have overstepped their authority in finding law in the "emanations and penumbra" of the Constitution, not in its actual words. Hamilton deals dismissively with this problem in the same article:

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body."

But if the Courts cannot be trusted to accurately interperet the Constitution, does it not follow from Hamilton's own argument, that this duty must devolve back to the people, through their elected representatives?

Rep. Lewis is basing his argument on Article III, Section 2 of the Constitution:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

The proposed legislation HR3920 would be limited to those cases involving judicial review so they would not fall within the original jurisdiction of the Court.

In his response to a critical article in the Kentucky Standard, Rep. Lewis makes the following interesting appeal:

"Members of Congress have, through the years, attempted to use this clause to strip the Court of its jurisdiction over certain issues. I don't seek to relieve the Court of any jurisdiction. I aim only to add a check on the Court when it interjects itself in the legislative process. The confirmation process is a flawed, impotent legislative check on the judicial branch. Politics permeate the process with justices too often hiding their ideological leanings until after they have been seated at the bench. Impeachment would also be improper because to attempt to unseat justices purely because of unpopular decisions would be tantamount to a witch hunt."