Probably most of you have heard of the Federalist Papers. These were written by Alexander Hamilton, John Jay, and James Madison to convince the states that they needed to adopt the Constitution. They explained all the portions of the Constitution and showed how it was beneficial. 

What you may not have heard of, however, are the Anti-Federalist Papers. These were written by many people who were nervous about the Constitution. They wrote about things that wouldn’t work and what they believed would become tyrannical in the Constitution.

There are really good points on both sides.

Brutus, a writer of the Anti-Fed papers (under a pen name) was especially concerned about the powers granted to the Federal Supreme Court in the Constitution. He writes: “…they have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” (Mar 20, 1788: Brutus XV) 

He had a very valid concern. Pretty much everything he predicted has come true. The Federal Supreme Court really doesn’t have to answer to anyone. They’re appointed by the president, and then they’re in there for life. They often make decisions that a lot of the states dislike and disagree with. These decisions go forth as law, a precedent becoming the law for every similar situation onward. They cannot be controlled by anyone but themselves – and there are 9 people with this amount of power. This means that a controversial decision can be made by 5 people (a majority), and go forth as law and precedent ever onward.

These judges can be removed on account of Treason, but no judge has ever been removed – ever. The Federal Supreme Court is the most powerful of all the branches, and if they make a bad decision, there is no one above these 9 people to stop them.

Obviously the checks originally put in place on the Supreme Court aren’t working. We need another check. It’s simple and subtle, but it puts another power over the Federal Supreme Court, balancing it out. Tyranny happens when the power only belongs to one group, but this will spread it out.

I therefore propose an amendment to the Constitution of the United States of America, written and followed by We the People. 

I propose that:

“A case ruling made by the United States Supreme Court may be overruled by two-thirds of the states’ Supreme Courts being in favor of overruling the same.”

This puts another check upon the Federal Supreme Court. This would put something above the 9 judges so that they aren’t just all powerful and whatever they say goes. The States would have a final say if enough of them got together.

And, it would be in the hands of the States’ Supreme Courts! Not in the hands of the governors, or the legislators, but the judges in each of the courts – people who know and understand the law and have the authority to judge it. It’s a subtle power over the Federal Court – there would have to be enough states who disagreed with a Supreme Court decision to rise up against it (two-thirds), but that threat – that balance – is there hanging over them, requiring them to think carefully about the decisions they make. 

And if two-thirds of the states don’t want a Federal Supreme Court ruling to go down as precedent and law, they can change that. Suddenly they aren’t all-powerful; whatever they say does not necessarily go. 

This amendment makes it so the word of the Federal Supreme Court is not necessarily law – that it can be changed, and that’s what is important. Because the Supreme Court shouldn’t be the ones making the laws – that’s the legislature’s job. 

If this amendment were to be put in place, perhaps we will never need to use it. That would be ideal. But what’s important is that we have a way to overrule a Federal Supreme Court ruling. We may never need to use this. But if this amendment is not put in place, we will never have the chance to use it when we need it. It’s better to guard against tyranny now than to wait until it catches us sleeping. I believe the Founding Fathers, if they saw how the Federal Court actually works today, would agree whole-heartedly with this amendment, because it goes along with the things they put in the Constitution in the first place. Everything they did was to guard against tyranny and support liberty, and if they had known the consequences of the Supreme Court today, I believe they would have included something like this in the first place.

What would this amendment mean for you? What within it – the separation of powers – can you consider for you and your family?