Mark Levin’s Third Liberty Amendment

An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override

SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.

SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.

SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.

SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.

SECTION 7: The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.

SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.

It should not surprise you to find that Levin, a lawyer, former Chief of Staff to Attorney General Ed Meese in the Reagan Administration, and founder of the Landmark Legal Foundation, has spent a great deal of time with this amendment, which is designed to restore the federal judiciary to something approximating the original intent of the Framers who created it.

Nearly a hundred years of progressive efforts to both enfeeble the Supreme Court (in terms of opposing the state) and empower it (in terms of supporting the ever expanding powers of the state) have brought us to a pass in which our highest court operates as if the original words, intentions, and meanings of the Constitution are irrelevant, and that document is no more, and no less, than whatever they say it is.  In other words, the original Constitution no longer exists in any legal sense and operates today as a construct the legal and ideological whims of nine justices.

Levin understands that we likely cannot eradicate bad rulings, but we can eradicate faithless justices and their bad decisions.  And that is exactly what this Amendment is designed to do.

First, Levin offers a bit of history:

5 In Anti-Federalist 11, Brutus, believed to be New York judge and Anti-Federalist Robert Yates, one of the most articulate opponents of the Constitution, was alarmed. He warned:

The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature.  .  .  . No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.  .  .  . 6

In addition, Yates made this prediction in Anti-Federalist 15:

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. 7 [emphasis mine – ed.]

Yates, who died in 1801, did not live to see the 1803 Supreme Court decision in Marbury v. Madison. No doubt he would have been appalled.

No doubt. The Framers never intended for the Supreme Court to have the unbridled power that it arrogated to itself with Marbury, (although few of them still alive at the time of that decision protested it – publicly, at least.

The same was not the case with Thomas Jefferson:

No less than Thomas Jefferson, the original author of the Declaration of Independence, was furious about the Marbury decision. In a letter to Abigail Adams, John Adams’s wife, Jefferson wrote a year after Marbury was issued,

“The Constitution  .  .  . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” 9

Jefferson’s concerns with judicial power became more pronounced as he passed into old age. In 1820, he wrote William Jarvis:

[T]o consider judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps . . . and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. 10

Alexander Hamilton noted how the Framers viewed the proper role of the Supreme Court they created:

In Federalist 78, Hamilton wrote, in part:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.  .  .  . 5

Well, the judiciary remains truly distinct from both the legislature and the Executive, but it long ago gave itself the power – and has been permitted to retain that power – to not only rule over both estates, but over the Constitution itself.

Levin’s amendment here is designed to redress that basic inequality, creates new and necessary checks upon the now-unbridled power of the dictatorial federal judiciary, and restores the originally intended balance between and among the various estates, the court, the states, and the people.

I strongly support this amendment.  We are currently ruled by an oligarchy of nine old men and women, none of whom are perfect, and none of whom are worthy of, deserve, or were ever intended to hold and wield so much unbridled power.

About Bill Quick

I am a small-l libertarian. My primary concern is to increase individual liberty as much as possible in the face of statist efforts to restrict it from both the right and the left. If I had to sum up my beliefs as concisely as possible, I would say, "Stay out of my wallet and my bedroom," "your liberty stops at my nose," and "don't tread on me." I will believe that things are taking a turn for the better in America when married gays are able to, and do, maintain large arsenals of automatic weapons, and tax collectors are, and do, not.

Leave a Reply