3. Judiciary and Criminal Justice

A Radical Centrist Vision for the Future > List of Amendments > Judiciary and Criminal Justice

3.1 Non-partisan election of Supreme Court Justices

Direct non-partisan national election of Justices shall henceforth be required for service on the Supreme Court. Justices shall serve 8 year terms with only one re-election possible. Current sitting Justices shall start the count of their years on the High Court –for election purposes– from the time of their appointment to the Court, and may not seek election to the the Court if their time on the bench exceeds 8 years. Those that exceed service of 16 years are hereby asked to resign.

The purpose of this Amendment is to ensure an end to a judicial system based on gerontocracy and to ensure that no one political party, through luck of circumstances, is able to set the agenda of the Court for many years through unelected appointments.. It is also intended to replace a system whereby a Justice is appointed because of his or her youthfulness and thereby will represent a President’s interests for many decades into the future, something which subverts the purposes of justice which should be the over-riding concern of the Court.

There shall be staggered elections for Justices. Each two years, two justices shall stand for office.

Approval of the American Bar Association shall be required for all candidates for Justice of the Supreme Court, with the proviso that, in exceptional cases, candidates need not be lawyers. Moreover, the Bar Association shall feel free to recommend candidates and pass them to the Senate –which is hereby charged with the responsibility to choose, on a bi-partisan or non-partisan basis, its own recommended pairs of candidates for Justice. That is, elections for the office of Justice should be contested.

Persons who wish to stand for the office of Justice may petition the Senate, even without Bar Association recommendation, for this privilege; this allows otherwise overlooked potential candidates to at a minimum receive recognition and express views of interest to a wider public with good chance of being listened to and of having some influence on political policy as it pertains to the Law. The Senate may, at times, decide to select such a person as a legitimate candidate. But only candidates approved by the Senate shall be listed on official ballots and be eligible to serve as Justices of the Supreme court.

Any present or past Senator is eligible to stand for election as a Justice, but, if serving, must resign his (or her) Senate seat a minimum of 90 days before an election.

The President shall have power of veto if a proposed candidate is regarded as unacceptable by the White House. It shall require a two-thirds majority vote of Senators to over-ride such a veto.

During each presidential term one Justice, not currently serving on the Supreme Court, shall be appointed by the President to serve as Chief Justice. This Justice must be confirmed by the Senate. If he or she serves no more than 8 years it would be possible for this Justice to seek election to the Court for one term.

In the case of death or incapacity and a Justice cannot complete his or her term in office, the President shall appoint a replacement Justice to serve until the next general election. This Justice does not need to be confirmed by the Senate. However, if 2/3rds of the Senate objects to this appointment the justice shall be removed from the Court, effective immediately upon a formal vote.

All reasonable effort shall be made to ensure that the Justices represent some approximation of the religious and ethnic makeup of the population of the United States. The current Supreme Court, as of this writing, consists of no Protestants in a Protestant majority country, three Jews, five Catholics, and one nominal Anglican. This, in a nation with a Protestant majority and a Jewish minority of approximately 1 – 1/2 %.

This provision is not intended to require something approaching exact balance since that would be impossible anyway, but at least a semblance of equity. This principle extends to the educational and regional backgrounds of Justices, nearly all of whom are now graduates of Ivy League universities, with most born some place on the Eastern Seaboard. Such an unrepresentative Court is a disservice to the nation.

This Amendment supersedes previous relevant parts of the Constitution.

Explanation: The intention of this Amendment is to end the practice of keeping on the bench Justices who, by rights, should have retired years before. In effect, a de facto gerontocracy has characterized many past Courts, something that reasonable men and women have criticized as not serving the best interests of the nation. It is also the intention of this Amendment to allow Senators with the interest and expertise to seek to become Justices, something that might well be of great benefit to the United States.

3.2 Constitutional Interpretation

All matters brought before the Court shall be interpreted according to the intent of those who drafted the original Constitution and all subsequent Amendments. This means that no Judicial understanding of the Law shall fail to take this into full account. This intention can be determining through historical research –this is what the profession of history is supposed to do. Moreover, the substance of cases shall always be the most crucial concern of the Justices in making their decisions.

For the Constitution itself, this especially means evidence as found in the extant writings of James Madison and Alexander Hamilton, and John Jay, the authors of The Federalist Papers, but including Thomas Jefferson and various of the delegates to the Constitutional Convention of 1787 such as Roger Sherman, Gouverneur Morris, and Rufus King.

This Amendment allows for seeking meaning that current Judges or Justices cannot find in evidence of intent as left to posterity by the drafters, instead as may be identified in evidence of how contemporaries understood provisions of the Constitution or any of its Amendments.

Explanation: Original Intent shall not be taken to be strictly literal in all cases. Analogy may be an obvious necessity, the world of 1787 is very different than the world of 2011 or 2012 and will be different again in the future. Nonetheless, it is indefensible to stretch the meaning of either the Constitution or its Amendments beyond all reasonable original intent, a pattern in Court decisions for many years. Doing so makes a mockery of the purpose of both the Constitution itself and of the various Amendments.

As well, it is judicial malpractice to ignore the substance of cases. That is, in determining whether or not something is fair, for example, it is necessary to be certain that “fairness” is a legitimate consideration.

It has been inexcusable, for example, for the Justices to reply upon views of the APA, the American Psychiatric Association, to judge whether or not homosexuals deserve the same legal status as normal Americans. After all, Congress has held no relevant hearings to determine whether the APA is competent to make decisions on the mental health of homosexuals, and the professional standing of the organization is open to serious dispute because it has been under effective homosexual domination from some date in the 1970s to the present. In other words, the inmates have taken over the asylum yet the Court acts as if there is nothing wrong.

This is crucial because the mentally sick are legally incompetent and by definition cannot have the same status as sane citizens. The only claim which the mentally ill can legitimately take before the courts is for appropriate medical help or psychological treatment. Yet as things now are, we have a class of mentally ill people making demands, often recognized by the judiciary, for special rights, on the specious grounds that they are an oppressed minority. They are no such thing, they are a population with grievous mental health problems.

Such a situation can only come to pass if the Court regards the Law as superior to all other considerations, which it manifestly is NOT. In the case of “rights,” we can safely conclude that the Founders had in mind sane persons who should have full citizenship rights, and ONLY sane people.

Virtually all the “greats” of the psychology professions in the past until the time of the homosexual capture of the APA, from Freud to Karen Horney, had shown that same-sex sexuality is pathological with any number of serious consequences. The 1973 decision of the APA to “demote” homosexuality from the status of a mental illness to a psychological disorder changed nothing of substance.

Further, research after 1973, from Masters and Johnson’s work of the late 1970s through to the studies of Dr Charles Socarides in the 1990s and Dr Paul Cameron and also the National Association for Research and Therapy of Homosexuality in the 21st century, have added to the preponderance of evidence which says that homosexuality is as pathological as it has ever been, that there is no basis to claims that it is genetic or otherwise is biologically predetermined, that it is, in all cases, originally a matter of choice –which can be reversed though various empirically tested therapies, such as those of Masters and Johnson.

Yet, and there are many other considerations, the Court in no case has ever considered the issue of homosexuality on the merits, such that, in repeated decisions, it has contributed greatly toward the manufacture of a mythology about homosexuality which is now regarded widely as empirically true. This is completely unacceptable.

This same principle applies in other areas, such as the legal status of computer technology, intellectual property rights, and so forth. Ironically, the Court itself has seen the need for judicial empirical research in the 1993 Daubert case which recommended independent research on the part of judges / justices as often necessary in order to adequately decide upon cases brought before the bench.

It may be that the Justices have little or no training in many areas outside of the Law, but this is no excuse to ignore substance in ANY case. The Justices have plenty of resources available to retain special researchers for specific cases, possibly, in part, by employment of graduate student interns, to accomplish the necessary research. As well, each Justice has his or her own clerks. Given the importance of original intent it would behoove each Justice to have at least one historian of American history as a clerk rather than all clerks being specialists in the Law only.

Finally, against the objection that some form of “living Constitution” interpretation is essential because we live in a changing world, there is a fallacy to point out: Many judges and Justices have used this theory to excuse flagrant legislating from the bench, which itself is unconstitutional by any reasonable definition of the term. As well, this Amendment presupposes that we also need revision in Article V of the Constitution, through a related Amendment to make it less difficult to add Amendments –not easy, just less difficult. But as it is, Article V exists for a reason. As our needs change we are free of add to the Constitution through deliberative democratic process. In other words, there is NO justification in the Constitution for legislating from the bench.

This Amendment is meant to correct all problems indicated and make it impossible for any similar problems to arise again.

3.3 Change in the Amendment process

An amendment is ratified when it is approved by states representing 3/4ths of the US population, but a minimum of half the states plus one, NOT by 3/4ths of states. This modifies Article V of the US Constitution. Future printings of the Constitution should include a note to this effect.

3.4 Constitutional Justification for New Laws

All measures considered for enactment into law shall have affixed one or more references to at least one clause in the US Constitution with is consistent with any proposed law. The Supreme Court will have the responsibility of reviewing the Constitutional references and, if a majority of the Justices take the view that a supportive clause has been wrongfully interpreted, it shall return the proposed measure to the Congress so that legislators may make appropriate revisions or table the proposed law.

3.5 Right of States to Rescind Federal Laws

It can happen that the Federal Government over-reaches its mandate from the people. When this occurs it is within the power of the states to correct the problem. A resolution of states representing three quarters of the population of the nation, but a minimum of half the states plus one, shall be sufficient to rescind any Federal law or regulation.

One class of exception is allowed: In time of declared war or declared national emergency the states shall not have this right.

3.6 Supreme Court Amendment-Recommendation Prerogative

In cases brought before the Court which any Justice believes cannot be decided to best effect under existing law or Constitutional provisions, that Justice, or any number of Justices, may convey to the Congress the opinion that an Amendment would serve the national interest.

Separate explanation(s) should be appended where necessary, so that elected officials can understand the reasoning for the recommendation. Congress shall have discretion about the future disposition of any such proposed Amendment although it is assumed that the Court would only make a recommendation of this nature if it seemed important and deserved ratification.

Explanation: The Warren Court’s decision in Brown v Board of Education, which effectively abolished “separate but equal” treatment of African-American citizens, was and still is regarded as just, fair, and essentially for the good. However, the Court, according to generally accepted accounts, took the view that the intentions of the Founding Fathers on the Constitution were not all that relevant to the situation as it existed in the post WWII era. Hence the Warren Court took it upon itself to base its reasoning on contemporary social values and perceived social needs –the so-called “living Constitution” philosophy.

This viewpoint is unacceptable and opens the door to evils of every kind and renders the concept of Constitutional and legal precedence problematic. It also undermines the standing of the Constitution itself, by relegating it to status of a “period piece” document which can be disregarded almost at will, depending on anything from “the mood of the nation” at some point in history to judicial idiosyncrasies as may exist on the bench from one year to the next.

The Constitution, however, is not only the most crucial of our founding documents, unless this honor should be bestowed on the Declaration of Independence, but it is foundational to all subsequent American law and jurisprudence. Therefore, the intentions of the Founders, and also of the framers of later Amendments, must be consulted in arriving at decisions of Constitutionality. All such decisions should be consistent with original intent in this expanded sense — to include intent of Amendments

Nonetheless, it may happen that unforeseen needs can arise which do, in fact, call for new Amendments, as happened in 1954. Which, it can reasonably be argued, fairly characterize the outcomes of a good number of subsequent cases which should not have been decided on grounds that stretched the meanings of the Constitution or its Amendments out of all recognition to original intent. With the privilege to recommend a new Amendment as circumstances warrant, the Court could then defer deciding on such cases until or unless a recommend Amendment is ratified and a determination made on solid Constitutional grounds which all citizens could respect.

3.7 Truthfulness in Court Decisions aka Roe v Wade Revisited

It shall be necessary for all cases tried before the Supreme Court, as well as any other Court, for no fraud or misrepresentation to exist in testimony of any litigants or their representatives. If any form of deception is shown, after a case has been decided, to have been given by any party who benefits from a decision in their favor, that decision will be thrown out.

Explanation: It is unknown how many cases have been decided in America’s courts of law based on false testimony, but the most notorious is the 1973 Roe v Wade decision where the primary plaintiffs later confessed to Carl Rowan, a reputable journalist, that they had pressed their case based on a series of fabrications. Clearly, had the Justices known at the time of their decision, the case would not have proceeded. Which is to say that the Roe v Wade outcome was a miscarriage of justice. Any cases, both in the future, and retroactively, which can be shown to have been based on false testimony shall be vacated and shall become null and void.

3.8 Federal Judges

The Supreme Court may, with due cause, remove from the bench and disbar any Federal Judge. Legal standing to bring charges against a sitting judge is hereby granted to any state or Federal legislator, state governor or state attorney general, or ranking official of the Department of Justice. A certifying bar association shall also have standing before the High Court when it seems necessary, in its judgement, to take action against a Judge who merits censure.

Federal Judges shall be reconfirmed after 6 years and may not serve more than 12 consecutive years in that office, or more than 12 total years.

3.9 Judicial Vacancies

The process of filling judicial vacancies should be no more lengthy than necessary, which is to say, much faster than has hitherto often been true.

The President shall appoint judges to the Federal Courts of the United States by way of transmitting a nomination to the Senate. All judges thus appointed shall be citizens of the United States at the time of their appointment and shall not have been convicted of any felony or crime of moral turpitude. Any person thus appointed who, having ten years or more of law practice, shall assume this office unless a majority of the Senate objects in a floor vote. If the Senate fails to confirm the nomination, the candidate shall be rejected and a new nominee for the bench submitted within 14 calendar days.

The Senate has the responsibility of filling a minimum of 90 % of all Federal judgeships within 120 days of the start of any session of Congress and any others within the next 30 days. The President has the duty to make nominations within 45 days. To avoid problems associated with rejected nominations, the Executive should have a list to draw upon, as needed, from among other qualified jurors as “standby” candidates.

This Amendment shall not apply to the Supreme Court, whose membership shall be determined through other means. Nor shall it apply to vacancies as they arise at other times during a Congress or administration.

Adapted from the site: Not A Potted Plant

3.10 Supreme Court Rules

(1) No referendum or state constitutional amendment, for any state, passed by the voters of that state, that is brought to the Court to seek its overturn on Constitutional grounds shall be declared as unconstitutional unless a minimum of 7 Justices out of 9 concur.

(2) All sitting justices who have previously voted to overturn voter approved state constitutional amendments shall hereby be retired from the Court on the grounds that such usurpation of the rights of states, such bad faith in the capability of drafters of state constitutional amendments, and such blatant contempt for the rights of voters in our American democracy, deserves nothing less.

(3) The House and Senate shall each be permitted to request the Court to hear the non-binding views of Justices on the Constitutionality of proposed legislation. The purpose shall be to do away with time consuming and costly litigation concerning controversial new laws. Each chamber shall be able to make 4 such requests each year at times of their choosing and the Justices shall comply within 30 days of the request.

(4) In no case shall the Court refer to foreign law of any kind in reaching decisions. This manifestly does not mean that any Justice is prohibited from study of foreign law but it does mean that the laws of other nations shall not be made use of for purposes of deciding American cases before the Court. One class of exception is allowed, when Justices concur by a minimum of 7 votes.

Section 1. The judicial power of the United States shall not extend rights or privileges provided to citizens by this Constitution to foreign enemies of the United States who fall under the military jurisdiction of the United States in time of war or military conflict; except as shall be agreed to by the United States under international treaty on the conduct of war

Section 2. The judicial power of the courts established under Article III of this Constitution shall not be guided by any precedent or opinion by any court or tribunal established outside the United States; unless the United States, by two-thirds affirmative vote of the Senate, shall seek such an opinion.

Section 3. The fourteenth article of amendment to the Constitution of the United States shall not be construed to provide a benefit or emolument to foreign nationals who are found to be residing illegally within the United States or its territories.

3.11 Effects of Overturning Unconstitutional Laws

When a Federal law, or portion thereof, is declared unconstitutional by the Supreme Court, a Grand Jury shall be convened comprised of 7 citizen voters of the various states, to include at least one military officer and at three legislators of the states. The remaining Grand Jury members shall be selected by random lottery.

This Grand Jury shall review the passage of that law, or portion thereof, and shall determine if punishment is suitable to the law’s originators. The Grand Jury shall determine if any treason or high crimes were perpetrated by the author, co-sponsors, legislators, or executive. If punishment is deemed warranted, it may include removal from office, banning from office, or stripping of citizenship from those responsible.

This Amendment is not intended to punish lawmakers or others who have acted in good faith who simply sought better law but misunderstood Constitutional limits. Rather, it is intended to prohibit law makers of others from acting on the basis of questionable values or ideology. Intention of responsible parties must be established beyond reasonable doubt.

Follows an original suggestion by Rich Vail, but modified in various ways here.

3.12 Equality Under the Law

The economic worth of litigants before any court shall never give any party to any lawsuit advantage in determining the outcome of a trial.

Explanation: Inherent injustice cannot be allowed to exist within the legal system. That cases brought before the bench are often decided on the basis of who can afford the best attorney, or attorneys, rather than strictly upon the merits, is a travesty of the Law. Similarly, that bail is only available to people who have sufficient money to pay it, is also intrinsically unfair. Additionally, a citizen of modest means who is wronged by such actions as libel or slander perpetrated by someone who has significant financial resources, cannot seek redress under the current system unless pro bono representation might become available (which is always uncertain) because the legal system makes no provision for such contingencies. Which, of course, can result in defamation of character or other crimes for which the victim has no recourse. Therefore, Congress shall be given the responsibility of redesigning the legal system such that (1) all such problems will become impossible in the future, but (2) not in such a manner that lawyers are enriched in the process. This is not intended to increase the incomes of attorneys. That is, Congress shall devise a reliable system to devise cost-effective solutions to problems outlined here, or similar problems, or problems of this kind of character which may arise in the future.

The recommendations by Congress shall be written in the form of a Constitutional Amendment, which, upon ratification, will become the “Equality Under the Law” Amendment, the comments written here included in the Explanation.

3.13 Speedy Trial in Fact, Not Legal Fiction

Proposed Amendment to the Constitution, June 8, 1789 submitted by James Madison

Exact wording of original proposed Amendment:

” In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”

Explanation: With the exception of cases for murder this shall mean an absolute limit of one-half year for all trials of any kind, and even this amount of time shall only be allowable in special cases of extreme complexity. No misdemeanor case shall go to trial later than 30 days from time of arrest. Provisions of this Amendment apply to US citizens only; treatment of non-citizens shall be at the discretion of the Court involved in any particular case. Suspected terrorists shall be treated as enemy combatants and be tried in military tribunals.

People in positions of authority have made it a point in public statements that when it comes to national security and the safety of American citizens, we must use actual facts in making decisions and not let ideology be a guide. Obviously the administration of Barack Hussein Obama has done the exact opposite in order to placate and appease Muslims. Hence another reason for this Amendment, so that no future president can willfully place ideology ahead of the legitimate safety and security interests of Americans.

Surveillance of any US citizen under suspicion by any government agency for any reason whatsoever, shall be treated as a case at law, should it be shown to have taken place over an extended period of time, in excess of 5 years and then only under extraordinary circumstances. Otherwise a limit of two years shall be regarded as the maximum allowable by law.

Should the government, at any level, continue such surveillance beyond these time limits without written consent of the Supreme Court, those responsible for the surveillance shall be liable to prosecution under the law.

The purpose of this provision is to make it clear to the government that it shall not use the powers of the state for political purposes, nor to deny dues process to any citizen by an evasion which sidesteps what is otherwise a necessity, bringing charges, so that the accused has no recourse and may be denied reasonable opportunity in life to pursue happiness, including a career. This provision shall apply to all perpetrators retroactively, who may still be alive. Ex post facto considerations do not apply and are specifically rendered moot This is not intended to be generalized and is limited specifically to this provision of this Amendment.

“Surveillance,” in the preceding paragraph shall mean any form of intervention is a suspect’s life which has the effect of denial of due process and which, in fact, can be shown to be detrimental to his (or her) best interests including career interests.

Exemptions: Absence of the defendant shall result nullify trial date considerations at the discretion of the Court. A Judge may grant postponement of a trial due to unavailability of a necessary witness, or if a codefendant is guilty of prejudicial conduct. A defendant’s involvement in unrelated legal proceedings shall be sufficient grounds for delay of start of legal proceedings. Courts also have discretion to grant the prosecution a Continuance when “the interests of justice” demand it, although the reasons must be set down in writing and made available to the public unless issues of national security or public safety are at issue, but in such instances these written statement can only remain secret for a maximum of 5 years. Cases may be dismissed for pretrial irregularities only with consent of a superior court.

In the case of backlogs or other problems which inhibit the mandate for speedy trial, the responsibility for solving such problems rests with local or state authorities, it being presumed that this will not be an issue in Federal Courts inasmuch as Congress shall adequately fund the Judicial system and make other essential arrangement so that these kinds of issue do not arise. That is, all resources necessary for successful and speedy prosecution of cases must be provided by appropriate governmental agencies.

3.14 Limits on Legal Fees and Settlements

Excessive legal fees are unacceptable in a just society. The maximum fee allowable for attorney services should be 20 % including “billable hours” but excluding extraordinary expenses when a presiding judge determines such expenses are necessary for a case before his (or her) bench. The goal should be an “average” maximum fee in the 15 % range, with provision for 10 % fees for people with limited means.

Explanation: Lawyers have every right to become wealthy but not through advantages of a monopolistic legal system that requires plaintiffs to pay very large sums of income or savings to obtain simple justice in order to continue to contribute to the real economy. Law should not be parasitical on the real economy.

Similarly, what is often called “tort reform” needs to be disposed of once and for all so that extreme financial awards cease to exist in court verdicts, including limiting the liability of conscientious medical professionals with no appreciable record of patient complaints or malpractice charges. Awards for punitive damages should always be reasonable and never exceed some fraction of a plaintiff’s estimated lifetime earnings. This principle should not be abused through subterfuges or technicalities.

In other words, a settlement for $ 5,000,000 when a plaintiff can only expect to earn $ 1 million in a lifetime is ridiculous, unjust, and absurd.

Each state shall be empowered to set punitive damage-award standards as it sees fit, in keeping with the spirit of this Amendment.

3.15 Incarceration costs

No Federal detention facility shall incur costs for prisoner maintenance which exceed the national poverty level. Exceptions may be made only for violent offenders, or those who represent a threat to national security, who need to be incarcerated in maximum security prisons.

Not included in this Amendment are expenditures which may be deemed necessary for medical treatment of prisoners, psychiatric care, or the like.

Explanation: It is completely unjustifiable to spend more money to incarcerate a convicted felon or other offender than law abiding citizens have access to but who live at or below to poverty line. According to most recent available statistics as of 2010, the poverty line stands at approximately $ 10,000. The average annual per prisoner incarceration expenditure in the United States is about $ 25, 000 and in cases closer to $ 50,000 No justification exists to spend more public money on incarcerating criminals than many American citizens who are not law violators are able to earn.

The principle involved is not one of the virtue of frugality, although that is one consideration, but of triage. Society cannot save all people or underwrite all potentially useful plans. Choices have to be made and $ 25 million spent to keep a convicted murderer alive is $ 25 million less for public medical care, disaster relief, education for schoolkids, and so forth. What is the best use of limited resources ? Spending millions to keep a violent criminal alive and in the process enrich various lawyers, or use it for obviously useful social programs ?

The intent of this Amendment is not to promote unsanitary prison conditions or overcrowding or anything of the kind. Rather, it is to inspire law enforcement agencies to devise cost effective means to detain non-dangerous criminals. Claims of “cruel and unusual punishment” must not be interpreted by the Courts to nullify promising alternatives to penitentiary incarceration such as confinement to isolated islands, work camps in the wilderness, or tent accommodations. Indeed, ideally penitentiaries would eventually cease to exist for all convicted criminals except violent offenders and national security threats.

This Amendment presumes that there shall only be one allowable appeal to a fairly-arrived-at Court decision. When that one appeal has been decided upon, the case is closed and shall not be appealed again and, if disallowed, the sentence shall be carried out expeditiously.

A Radical Centrist Vision for the Future > List of Amendments > Elections, Voting, and Citizenship (next)


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