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Supreme Court Fix?

 The Supreme Court has taken up the issue of how and if the second amendment applies to state and local government regulations. At issue are two uninteresting (except to geeky lawyers) and largely misunderstood provisions of the fourteenth amendment. One is what is called the “privileges and immunities” clause, and the other is the “incorporation” issue. Suffice it to say that both issues address the questions of what the fourteenth amendment provides or protects.

Originally, the U.S. Constitution was a compact between sovereign states. It was signed by delegations from each state, and had to be ratified by individual states. The bill of rights was added as a safeguard against the depredations of the new federal (not “national”) government. Ninety years later, after the late unpleasantness, as the old-time southern gentility puts it, the country ratifies the fourteenth amendment. It is designed to protect the rights of black americans in the “new” south. More years pass, and the Supreme Court, working their linguistic hoodoo, declares that the 14th amendment acts to “incorporate” the bill of rights, thereby prohibiting the individual states from violating the rights enumerated therein.

But not all of them. Only the ones the Supreme Court say are incorporated. So the states cannot, for example, limit the scope of the first amendment, but the can the fourth. And year after year, the Supreme Court adds right after right that is “incorporated.” Now comes 2010, over 200 years after the U.S. Constitution is ratified, and the court takes up the issue of whether the second amendment applies to individuals, and is incorporated into the 14th.

Aside from the incredibly easy to understand phrase “the right of the people,” the court is set to weigh in on whether Chicago can violate the constitution. Actually, the court is going to decide whether the constitution actually applies to Chicago. To those of us who live here, it is more than merely an intellectual question. We have a vested interest in this case. Around these parts, the constitution is seen as merely one more law to be circumvented. It’s actually surprising that Bush wasn’t a Chicagoan, given his feeling about that “piece of paper.”

And it is pretty much assured that which ever way they decide, some people will be highly annoyed. And rightly so. The reason this country is so divided and angry about abortion is because of the supreme court. The country was so opposed to the court’s decision in Kelo v. city of New London that states rushed to prohibit the activity the court found so appealing. And as I mentioned the other day, 3 out of 4 people don’t trust the government. Eighty-six percent believe it is broken. Nobody exempted the supreme court from those results. We are told, or used to be told, that the supreme court isn’t final because it’s infallible, it’s infallible because it’s final. In other words, we have to live with the results because there’s no place else to turn.

Now, in principle, that’s a great idea. Somebody has to be the final arbiter of disputes. Appeals can’t continue ad infinitum; there has to be a terminus in the interests of progress. The question is, why them? The short answer is because they say so. Way back in 1803, the supreme court said that they were the deciders of what the constitution meant. And, surprisingly, everybody went along with it. Since then, the court has been seen as the ultimate authority on the scope and meaning of the constitution.

This has resulted in a lot of unnecessary political tension. Supreme court nominees are subjected to intense scrutiny in an effort to determine whose ox they’ll gore. The potential for candidates to nominate affects their election. Confirmation hearings have become sort of an American Kabuki, where everyone knows the outcome, but the ritual plays out. So let’s fix it.

I propose a constitutional amendment to limit the power of the court to decide constitutional issues. I propose that a new, higher court be formed. Call it the Court of the States. This court’s jurisdiction would be strictly limited to those cases that call for a decision on what the constitution means. Any time the supreme court rules on an issue involving the constitution, there would be a right of appeal to the Court of the States. The interesting thing would be how this new court is composed. In my proposal, it would be made up of 11 judges. Each judge would be the head judge of their state. In Illinois, that would be the Chief Justice of the Illinois State Supreme Court. There would be a time limit on how long each judge would serve, and there would be a schedule of rotation so that each state’s chief judge would serve an equal amount of time.

This wouldn’t fix all the problems with the court system, but it would place a little more control in the people’s hands. First, the individual states would have a say, through their judges, on what the constitution says. Since the states are the ones that entered into the agreement, it seems fitting to give them a say in what it means. Secondly, most states have some voter involvement in judges; either electing them outright, or voting on their retention. This gives the voter a more direct say in what the constitution means. And after all, isn’t that the point? That the people are in really the ones in charge?

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