“US Supreme Court Violates the Constitution” by Frank Dixon

Jay Owen Global Citizen, Ethical Markets Review, Latest Headlines

“Ethical Markets is happy to post this link to our Advisory Board member, Frank Dixon’s important update of his article “US Supreme Court Violates the Constitution“, which discusses reforms now needed to bring SCOTUS back in line with the Founders’ intentions!  As this corporate-friendly and active conservative-leaning SCOTUS resumes its work today, it is more urgent than ever that citizens re-examine reforms being debated in the Commission, on term-limits, enlarging the Court and reinstating voting rights, as well as passing S1: “The Peoples’ Right to Vote“ legislation before Congress. This article joins that by our Advisory Board member, Jerroll Sanders, also posted on our Latest Headlines,  in support of the “Peoples’ Right To Vote“ bill in the Senate, also urgently needed to prevent Republicans efforts in many states to take over traditional vote-counting procedures, as well as further gerrymandering.

Time to defend all our democratic rights and principles!

~Hazel Henderson, Editor“

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The current structure of the Judicial Branch violates the US Constitution and Founders’ intentions. The
partisan court largely has dismantled US campaign finance laws. Vested interests are now allowed to
anonymously spend unlimited amounts on political campaigns. This has given them strong control of
government and both major political parties. This in turn has driven high concentration of wealth and
unnecessary suffering of US citizens over the past 40 years.

The Supreme Court seems inclined to overturn the landmark 1973 Roe v. Wade decision. This could drive
another great women’s rights movement and substantially disrupt society. The Court has weakened voting
rights, environmental laws and other societal protections. Aligning the Judicial Branch with the US
Constitution is essential for protecting society. This article discusses how the current structure violates the
Constitution and the actions needed to rectify this injustice.

Under current constitutional interpretations, the Supreme Court can unilaterally and irrevocably void acts
of the Legislative and Executive Branches. This makes the Judicial Branch the strongest branch of
government. In addition, Supreme Court Justices are unelected, lifetime appointed and largely
unaccountable to the people. They are aristocrats. When a lifetime appointed, aristocratic, unaccountable
branch of government has absolute authority over the two elected branches, democracy and republican
government largely do not exist.

The US Founders rebelled against the aristocratic British government. They absolutely did not intend to
establish aristocracy in the US. The current structure and authority of the Judicial Branch are heavily
influenced by the Federalist Papers related to the Judiciary (Nos. 78 to 83), which were written by
Alexander Hamilton. He admired the British form of government. During the Constitutional Convention
of 1787, Hamilton proposed that the President, Senators and judges serve for life once elected or
appointed. He also proposed that Congress appoint state governors and have veto power over state
legislation. His proposals largely were ignored during the Constitutional Convention because they
established aristocracy and took too much power from the states. James Madison referred to Alexander
Hamilton as a monarchist.

Hamilton failed to achieve the aristocracy he advocated during the Constitutional Convention. But he
ultimately won. In the Federalist Papers, he supported lifetime judicial appointments and said the
Supreme Court should be empowered to interpret the Constitution and void laws that violate it, a power
known as judicial review. But Hamilton acknowledged that the Constitution does not give the Judicial
Branch the authority to void laws. He also pointed out that it gives Congress substantial authority to
structure and regulate the Judiciary and there is nothing in the Constitution that prevents Congress from
reversing judicial decisions.

In an 1803 case, Marbury v. Madison, the Supreme Court unilaterally gave itself the power to irrevocably
void executive and legislative acts. As President Lincoln said, this essentially ended republican
government (i.e. citizens controlling government through elected representatives). The Constitution gives
all ultimate authority to We the People. The Founders made Congress the most powerful branch of
government because it is regularly elected, and therefore closest to the people.

James Madison, Thomas Jefferson, James Wilson and other Founders made clear that the Judicial Branch
was intended to be the weakest branch of government because it is unelected, and therefore farthest from the people. Articles I and III give Congress the power to structure and implicitly regulate the Judiciary.
Article III, Section 2 gives Congress explicit, unlimited authority to restrict and regulate the Supreme
Court on appellate cases (i.e. nearly all Supreme Court cases). The Founders did not intend that a small
group of unelected judges would have absolute authority over all citizens and the people’s elected
representatives.

They also did not intend that justices would be aristocrats who serve for life. Voluntary rotation in office
was common practice in the early US. George Washington did not seek a third term as President. The first
ten Supreme Court justices voluntarily left office after an average of eight years. This was consistent with
the structure of the US government (i.e. two years for Representatives, four years for the President, six
years for Senators, eight years for Justices). The Constitution says that judges “shall hold their Offices
during good Behaviour”. Some delegates to the Constitutional Convention believed that during good
behavior referred only to a standard for removal from office, not lifetime appointments.

The Founders provided substantial details about the structure of the Legislative and Executive branches in
Articles I and II. But they provided far fewer details about the structure of the Judicial Branch in Article
III. Instead they empowered Congress to structure and largely regulate it. If an important aspect of the
Judiciary is not established in the Constitution, Congress has the power to establish it. Judicial terms of
office are not explicitly defined in the Constitution, as they are for the Legislative and Executive
branches. The Constitution does not say that judges shall hold office for life or until they voluntarily
retire. Holding office during good behavior could be interpreted to simply mean that maintaining good
behavior is a requirement for remaining in office. Congress has the authority to define and implement
judicial term limits because specific terms were not defined in the Constitution.

The Constitution also does not establish an adequate mechanism for holding justices accountable. It holds
the President, Senators and Representatives accountable through elections. But judges are unelected. In
the Federalist Papers, Alexander Hamilton argued that judges are adequately held accountable through the
impeachment process described in Articles I and II. But as Thomas Jefferson said, this is incorrect.
Article II says that civil officers of the United States only can be impeached for treason, bribery and other
high crimes and misdemeanors. Under current constitutional interpretations, it would be nearly impossible
to remove justices for gross judicial errors, incompetence or violating the Constitution, in part because the
Supreme Court gave itself the authority to interpret the Constitution. In addition, the impeachment
process establishes a high standard for removal from office. A two-thirds vote is required in the Senate.
This would be very difficult to achieve in today’s highly partisan environment.

The Founders obviously did not intend that judges who make gross judicial errors, become incompetent
or violate the Constitution would remain in office. The Constitution establishes no mechanism for
removing judges for these and other valid reasons. Therefore, Congress can establish a process, for
example, by defining good behavior and implementing mechanisms for removing judges who violate the
standard. Removing judges in a partisan environment could be difficult. Imposing term limits greatly
reduces this problem.

Vested interests often argue that establishing judicial independence was a goal of the Founders. But this is
misleading. Judicial independence was a tool, not a goal. The primary goals of the Founders were
promoting the general welfare and establishing republican government. These goals take priority over
everything else, including judicial independence. Full judicial independence equals no accountability to
the people, the legitimate rulers of society. Judicial accountability takes priority over judicial
independence because there is no republican government without accountability to the people.

Vested interests also frequently argue that there must be a mechanism for ensuring that laws do not
violate the Constitution. This also is highly misleading. It implies that the Judiciary must prevent violations. But the Constitution does not establish this. Instead, it establishes at least four mechanisms to
ensure compliance – Presidential veto, the two-house structure of Congress, regular elections, and the
oath of allegiance to the Constitution. Congress could give judges some compliance role, for example, by
establishing the council of revision proposed by James Madison during the Constitutional Convention.
But final judicial authority must not rest with a branch that is not controlled by the people. This weakens
or ends republican government.

In addition, the need to ensure that laws do not violate the Constitution is smaller than vested interests
frequently allege. Article I, Section 8 gives Congress the authority to pass any law that it believes is
necessary to promote the general welfare, provided that these laws do not violate the few explicit or
implicit prohibitions in the Constitution, such as passing ex post facto laws or violating the Bill of Rights.
Article VI places these laws on an equal footing with the Constitution. The Constitution empowers
Congress to define the general welfare and pass nearly any law necessary to promote it. The President can
veto these laws. But the Judiciary is given no general authority to insert itself into the lawmaking process.
It cannot place its opinions about promoting the general welfare above those of Congress. The people’s
elected representatives are authorized to define the general welfare, not the unelected Judiciary.

For example, if Congress decides that providing healthcare to all citizens through government programs
(as every other developed country does) is a necessary component of promoting the general welfare, the
Judiciary has no constitutional authority to render an opinion in this area. As Thomas Jefferson said, the
Supreme Court only has authority to decide how laws apply in specific legal cases. Even this authority
can be restricted via Article III.

Vested interests often argue that the Founders intended lifetime judicial appointments because this
protects the judiciary from political influence. But they have the opposite effect. By giving money to
politicians and influencing government in other ways, wealthy citizens and corporations can compel the
appointment of judges who are highly biased towards protecting these groups.

Lifetime appointments facilitate the worst form of political influence – influence that cannot be corrected.
Once vested interest-biased judges are appointed, they generally cannot be removed, according to current
constitutional interpretations. This locks political influence into government and effectively gives vested
interests long-term control of the most powerful branch of government. Through Citizens United,
McCutcheon and other decisions, biased justices served the wealthy citizens and corporations who
effectively paid to appoint them by giving these groups even stronger control of government.

Hamilton argued that lifetime appointments would better enable the Supreme Court to uphold the
Constitution. But this is not logical. No other country appoints supreme court justices for life. Lifetime
appointments with limited ability to remove judges greatly reduces consequences. It makes them
vulnerable to hubris, partisanship and corruption, and thereby increases the likelihood that they will
violate the Constitution. If justices know that their decisions could be reviewed in a few years by the
judges who replace them, they will be more likely, not less, to abide by the Constitution.

Some people argue that Congress exercising its constitutional authority to rein in the Judicial Branch is
problematic because the Legislature also is corrupted by money and influence from wealthy people and
corporations. But citizens have the power to correct this corruption through elections. However, they
cannot correct corruption, vested interest bias or political influence in an unelected, lifetime appointed
judiciary. Therefore, as long as lifetime judicial appointments are in place, maintaining republican
government requires that final authority to interpret laws and the Constitution remain with Congress.

Congress tried many times in the 1800s and early 1900s to impose judicial term limits and restrict the
power of judicial review. These efforts largely were unsuccessful. However, the fact that they occurred illustrates that Congress has the constitutional authority to take these actions, if it develops the will to do
so.

Reforming the Judicial Branch by imposing term limits and restricting judicial review is essential for
establishing democracy and the republican government that our Founders clearly intended. Ending
aristocracy in the Judicial Branch is perhaps the most important change needed in the US government. It
also is one of the easiest to implement. No constitutional amendments are needed. Congress can impose
term limits and revoke judicial review through simple legislation. It also can reverse federal judicial
decisions, such as Citizens United.

The Supreme Court had no constitutional authority to unilaterally grant itself the power to irrevocably
void legislative and executive acts in 1803. However, Congress does have explicit, strong constitutional
authority to structure and regulate the Judiciary. Congress can do what the Supreme Court
unconstitutionally did in 1803. It can use its constitutional power to unilaterally impose judicial term
limits and restrict judicial review. The President could veto this legislation. But the Judicial Branch would
have no recourse.

When Congress does not exercise its authority over the Judicial Branch, it mainly is not being
magnanimous, respecting tradition or deferring to legal experts. It is giving away the people’s
constitutional power to control government, and by doing so effectively ending republican government.
The Constitution makes the people’s elected representatives the highest authority in government, not
unelected judges.

Imposing term limits and restricting judicial review would greatly reduce the tumultuous and disruptive
nature of Supreme Court appointments. Each appointment would be less significant because term limits
would drive rotation in the federal courts and thereby significantly increase the number of appointments.
Restricting judicial review would ensure that judicial servants of the people are appointed, as required by
the Constitution, instead of judicial masters. Increasing rotation and removing the monarchical power of
Supreme Court justices would align the Court with the Constitution and substantially reduce the
significance of each appointment.

Vested interests might attempt to mislead citizens into thinking that these congressional actions would be
a constitutional crisis. But the constitutional crisis occurred in 1803 when the Supreme Court effectively
ended republican government in the US. Imposing judicial term limits and restricting judicial review is
rectifying a constitutional crisis that has been allowed to linger for far too long.

Having an unelected Judiciary did not violate republican government because the Founders gave
Congress clear authority to control the Judicial branch. As long as the people’s elected representatives
controlled the Judiciary, our government was republican. But Congress has not adequately exercised its
authority over the Judicial Branch. Instead, it has allowed the Supreme Court to unconstitutionally
assume the role of supreme rulers in the US. But the Founders made We the People the supreme rulers,
not unelected judges. Our country should not be controlled by a small group of aristocratic judges. We the
People have all ultimate power. It is time to claim it.

This article is based on the book series: Global System Change: A Whole System Approach to Achieving
Sustainability and Real Prosperity. The books use whole system thinking to provide a system change
roadmap for human sustainability. They address and link all aspects of society, including environmental,
social, political, economic, psychological, religious and spiritual. The books suggest systemic changes in
all major areas, including judicial reform.

Frank Dixon established Global System Change in 2005 when he recognized that system change would
become the dominant sustainability issue of the 21st Century. His experience as the Managing Director of
Research for the largest ESG research company (Innovest) and sustainability advisor to Walmart, the
EPA and other organizations showed that flawed economic and political systems compel all companies to
degrade the environment and society. He conducted several years of multidisciplinary research to
produce a true whole system approach to sustainability (described in the Global System Change books).
Frank Dixon advises businesses, investors and governments on sustainability and system change. He has
presented at many corporate and financial sector conferences around the world, as well as leading
universities, including Harvard, Yale, Stanford, MIT and Cambridge.

Frank Dixon has an MBA from the Harvard Business School and is a Fellow of the World Academy of Art
and Science.

www.GlobalSystemChange.com