A Proposed Amendment To Article III of the U.S. Constitution


October 8, 2012 by P. J. Toscano

Whereas, the United States Supreme Court having erroded the individual liberties of natural persons and citizens of the United States in such cases as:

  • Bush v. Gore that effectively impeded the counting of votes in Florida and thus gave the Presidency of the United States to George W. Bush contrary to the Constitution of the United States,
  • Citizens United v. Federal Election Commission that accords corporations the same free speech rights as natural persons and citizens and allows them to contribute unlimited sums to promote or attack political candidates, 
  • Davis v. FEC and Arizona Free Enterprise Club’s PAC v. Bennett that allow unlimited  private funding of political campaigns while prohibiting unlimited public funding of campaigns,
  • AT&T Mobility v. Concepcion and Wal-Mart v. Dukes that make class actions more difficult to certify and thus alienates employees by forcing them to file individual discrimination suits against employers, 
  • Iqbal v Ashcroft that requires plaintiffs to allege specific facts in order to file a case and allows trial judges to dismiss cases if such facts are not “plausible,” thereby reversing the rules of over 70 years that placed discovery after a notice pleading, thereby making law suits more difficult to file to redress wrongs,
  • Kiobel v. Royal Dutch Petroleum Co. that will likely increase the difficulty of suing  corporations violating human rights,
  • Janus Capital Group, Inc. v. First Derivative Traders; Morrison v. National Australian Bank, Ltd; Watters v. Wachovial Bank; Cuomo v. Clearing House that in various ways protect wall street from suit by damaged or defrauded investors;

And whereas, the United States Supreme Court  having demonstrated itself to be out of touch with a majority of the citizens of the United States and, by a bare majority of five justices, being likely to continue to restructure the democratic foundations of the republic into an oligarchy that favors artificial over natural persons and more privileged over less privileged citizens of the United States;

NOW THEREFORE, the following EQUAL JUSTICE AMENDMENT to the United States Constitution be, and hereby is, proposed:

          ARTICLE III OF THE CONSTITUTION OF THE UNITED STATES  shall be amended to contain the follow additional sections that shall have the same force and effect as the original:

Section 4.  The United States Supreme Court shall consist of 15 Justices, each of which shall be selected from a pool of 150 licensed attorneys, three from each State of the Union. The selection of the pool shall be by lottery from the list of members of the bar of each such state who have attained the age of 50 years and have actively practiced law in the 7 year period prior to the selection with the first of the three to be randomly selected based on affiliation with the most dominant political party of that state, the second of the three to be randomly selected based on affiliation with the next most dominant political party of the state, and the third to be randomly selected based on non affiliation with any political party during the last 7 consecutive years. 

Section 5. Of the 15 Justices selected from the pool, three must be selected randomly based upon affiliation with one of the two most dominant political parties of the nation; three others must be selected randomly based upon affiliation with the other of the two most dominant political parties of the nation; three others must be selected randomly based upon independence for the last 7 consecutive years from either of the two most dominant political parties of the nation; three others must be selected as follows: one by the speaker of the house, one by the majority whip of the senate, and one by the President of the United States; and three others must be selected as follows: one by the minority leader of the house, one by the minority leader of the senate, and one by lottery from the remaining unselected members of the pool of 150.

Section 6. Once selected, the Justices shall arrange themselves in five groups of three, as referenced in Section 5 above, and shall draw lots.  The winners of this lottery in each group shall serve for a term of 9 years, the loser for a term of 5 years, and the remaining Justice for a term of 7 years; thereafter, each replacement of a Justice whose term has expired shall serve a term of 7 years.  If a Justice dies or resigns prior to the end of a term, his replacement shall serve only to the end of the term of such Justice. Any replacement Justice shall be chosen in the same manner as the Justice replaced.  No Justice shall serve for more than one term.

Section 7. Upon selection but prior to taking the oath of office, each Justice shall divest himself or herself of all financial interests by placing such interests with the trustee of a blind trust and shall have no information or involvement with respect thereto during his or her term as a Supreme Court Justice.

Section 8. No Justice shall have any communication whatsoever with any person regarding any matter before the Supreme Court or before any inferior court except through pleadings publicly filed with the Supreme Court or in hearings required by the case to be held by that Court.

Section 9. No Justice may sit on any other court; and no judicial officer of any other court may sit on the Supreme Court.

Section 10. No Justice shall delegate any matter or any judicial authority to any entity or party whatsoever; this provision does not preclude the Supreme Court from duly engaging qualified assistants to perform non-judicial administrative and research functions.

Section 11. The term of the Supreme Court shall begin on October 1st of each calendar year and shall end on August 31st of the following calendar year. 

Section 12. No Justice by formal or informal rule or otherwise exercise authority over or affect the diminution of the authority of any other Justice.  A chief Justice of the Supreme Court shall be selected by the President of the United States no later than 1 day following the expiration of the term of the next preceeding chief Justice and shall serve for a single term not to exceed 3 years.

Section 13. Cases or proceedings of any kind coming before the Supreme Court must be considered by all 15 Justices of the Supreme Court and no decisional holding of the Supreme Court shall be binding unless a majority of the Justices concur in such holding.

Section 14. Every decisional holding of the Supreme Court must designate the names of the concurring and dissenting Justices. The decisional holdings of the Supreme Court affecting the constitutionality of any law, rule, or procedure, including rules and procedures governing the Supreme Court or any other branch of the government, may be challenged by a referendum of a majority of the voters in each of the United States; in the event of such a referendum, such decisional holding of the Supreme court shall be submitted for review by the Circuit Courts of Appeal and shall be overturned only upon a two-thirds majority of  such Circuit Courts.

Section 15. In addition to the impeachment proceeding for any Justice in this Constitution, any Justice  may be censured or impeached for violating this Article or for felonies or for misdemeanors involving moral turpitude committed by the Justice while or before serving on the Supreme Court by a vote of three-quarters of the legislatures of the States of the Union in which two thirds of the population of the nation are domiciled.  An impeached Justice shall be removed from office and denied any emoluments thereof, including benefits of retirement, insurance, enrichment, support, or personal security.  Any censured Justice shall be removed from office and shall not subsequently hold any public office whatsoever.

Section 16. Upon the end of a term, the retiring Justice shall be prohibited from service in any public or political office or as a consultant or lobbyist thereto or therein or in any manner that may enable such to exert any influence upon the public sector of the nation, a state, or any subdivision thereof, either directly or indirectly, whether by action, commentary,  financial contribution, or otherwise.  A proven violation of this provision by a Justice shall result in the denial to such Justice of any emoluments of office, including benefits of retirement, insurance, enrichment, support, or personal security.

Section 17. Knowing and intentional interference with or subversion of this Article as amended by any entity may, for cause shown, be punished as a crime against the state by fine, imprisonment, or death. 

Section 18. This amendment shall take effect on the Monday following the 180th day following the date of its ratification, on which date the sitting Supreme Court Justices shall be retired in accordance with this amendment, and the 15 Justices selected under this Article as amended shall be sworn in and take their offices.

2 thoughts on “A Proposed Amendment To Article III of the U.S. Constitution

  1. After posting “A Proposed Amendment to Article III of the U.S. Constitution,” I realized that some notes this work product werein order. So here it they are:

    It is obvious to everyone that the U.S. Supreme Court is a political institution the members of which have their own agendas. If this wasn’t clear before the Justices gave the whitehouse to George W. Bush, it became clear after the Court’s CItizens United decision that made corporations persons and let big money control the electoral process.

    This amendment is a response to those and other partisan decisions of the Court.

    If you compare U.S. Constitution Articles I and II with Article III, you will note that the former contain considerable language about choosing the members of the House and Senate and electing the President of the United States. Article III says nothing about the mechanism for selecting the U.S. Supreme Court. Article III, was adopted by ratification of the Constitution in 1789. The power to determine the constitutionality of laws was not assumed by the U.S. Supreme Court until 14 years later in its decision in the 1803 case of Marbury v. Madison. I suspect that, had the drafters of the Consituttion understood that a majority of five lifetime Justices could strikedown state and federal laws as unconstitutional and, thus, have an enormous influence over the rights of citizens and powers of government, perhaps more consideration would have been given to the mechanism for selecting these justices.

    To fill the gap in Article III and directly deal with the selection of Justices and their terms, and other matters related to maintaining political balance in the U.S. Supreme Court, I proposed the Equal Justice Amendment, posted above. The sections of the amendment are additions to current Sections 1, 2, and 3.

    Section 4 outlines the mechanism for qualifying a pool of candidates for Supreme Court Justice. The pool consists of 3 randomly chosen practicing lawyers over 50 years old from each of the 50 states. The idea is that in each state the three candidates would represent each dominant political party and one independent.

    Section 5 outlines how the 15 justices of the Supreme Court are chosen from the pool of 150 and by whom.

    Section 6 outlines the mechanism for staggering the terms of the first 15 Justices chosen under the amendment, but fixes all subsquently chosen Justices to terms of 7 years.

    Section 7 prohibits Justices from controlling their own financial holdings while in office.

    Section 8 prohibits communications with Justices other than through pleadings or hearings before the Court.

    Section 9 prohibits justices of lower courts for hearing Supreme Court cases or Supreme Court Justices from hearing lower court cases.

    Section 10 prohibits Justices from creating a seniority system.

    Section 11 requires the Court to be in session 11 months of the year.

    Section 12 prohibits the Justices for hearing matters in panels or singly.

    Section 13 requires decisions to be binding only if concurred in by a majority of the 15 Justices

    Section 14 requires decisions to be signed by the conncurring and dissenting Justices, and also provides a mechanism to challenge the constitutional decisions of the Court by a majority of the nations population residing in two-thirds of the States.

    Section 15 provides an additional mechanism for impeaching a Justice and a new mechanism for censuring a Justice while in office.

    Section 16 provides a mechanism for disciplining a Justice whose term of office has expired.

    Section 17 provides a mechanism for punishing violations of Article III.

    Section 18 provides a deadline for seating of the Justices chosen under the amendment and the retiring of the Justices replaced thereby, and also sets an effective date for the amendment.

    I fear from the lack of comments on this post that this issue is either too radical, too boring, or too much Toscano for readers. If this is so, I apologize. I wrote the amendment out of irritation mostly.

  2. Joseph says:

    I’m less sophisticated about this. I think judges should be elected by some form of popular vote. They have most of the power in our system, and since they are not democratically selected, it kind of makes our claim to even being a representative republic unsubstantiated. If we are going to have one branch that doesn’t have to run for office and is just selected by one of the other branches, it should be the executive. Then the President would be more subordinated to the other branches, and we could get rid of the notion of having an elected king. And, since our judges end up choosing our President anyway, at least if they themselves had to run for office, they might be more accountable for who they chose.

    P.J., since the Mormon Worker is made up largely of anarchists, this might be a moot point for many.

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