Is it possible that this idea's time might eventually come?

Section 1. The power of judicial review claimed by the Supreme Court in Marbury v. Madison is explicitly ratified, but is held to be subject to the limits and conditions of this Amendment.

Section 2. The term of office of Justices of the Supreme Court shall be ten years. At the end of any Justice's first term of office, a second ten-year term may be granted, should the President renominate said Justice and should the Senate consent to the nomination.

Section 3. No Justice shall serve more than two terms on the Supreme Court.

Section 4. All questions of law, policy and justice not addressed by the People in their ratification of the Constitution and its Amendments, nor assigned to the judicial branch by the Constitituion and its Amendments or by legislative statute, shall be determined solely by the elected representatives of the People acting through the legislative and executive branches of the government, the judicial branch being absolutely enjoined from the making of public policy by judicial fiat outside of the democratic process.

Section 5. The authority of the Constitution and its Amendments is held to derive solely from the authority of the People in its ratification and in their intent to bind themselves and their posterity to the conditions expressed therein; therefore no interpretation of any provision of the Constitution shall be valid if it is unreasonable to believe that those who originally ratified the relevant provision would have withheld their consent from the interpretation in question; nor shall any interpretation of any provision of the Constitution be held valid that is not reasonably derived from the intent of the People in its ratification.

Section 6. All decisions of the Supreme Court shall be subject to review by the legislative and executive branches; and any such decision shall be rendered null and void upon reversal within ten years by a three-fifths majority of either House of Congress, with the concurrence either of the President or of a three-fifths majority of the other House, or upon reversal after ten years by a two-thirds majority of either House of Congress, with the concurrence either of the President or of a three-fifths majority of the other house; but this power of reversal shall extend only to the disqualification of the judgment passed, the removal of its authority as precedent, and resubmission of the case to a new consideration by the Supreme Court, the Supreme Court being absolutely enjoined from making recourse to such arguments as were rejected by the non-judicial branches; nor shall this power of reversal extend to the finding of an independent judgment in the case, nor to the establishment of new positive precedent.

Section 7. The willful or frequent refusal by any Justice to respect the restrictions of Sections 4 and 5 of this Amendment, shall be cause for his removal from office, upon impeachment by the House of Representatives and conviction by a two-thirds majority of the Senate; but judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.

You can tell I'm not trained in the writing of amendments to the Constitution, but there, with all its flaws, is the rough outline of what I have long believed to be the one amendment that our Constitution most desperately needs.

I have felt literally for years that incontravertible evidence that the review powers claimed by the Supreme Court are in themselves a usurpation of power, can be seen in the fact that Constitution provides no checks and balances upon the Supreme Court to offset their ability to interfere with, and defy, the will of the people as expressed in the two elective branches of government. To me it simply defies everything we know of the thought processes of the men who constructed the Constitution, to think that this kind of power would be deliberately vested by the Framers in (essentially) five men who were neither elected by nor answerable to the People, who had lifetime appointments that rendered them immune to any desire to do a good enough job to be invited back for another round, and most damningly were under no oversight by the other branches and could not be overruled even by both elective branches in concert, not even by a supermajority thereof. Justice Marshall perpetrated the single most effective non-Constitutional power grab in the history of our republic (that is, the most effective bid to seize for one of the three branches a power that is not rightfully its own and that sets that branch free from the scheme of checks and balances), in comparison to which the alleged attempts by Bush to appropriate excess power for the Presidency are notable only for their childish lack of scope and ambition. For more than a century the judicial branch reigned itself in by using this assumed authority only sparingly. But all such restraint has long since been thrown to the winds by the liberal activist majorities of the last half-century. And when self-impressed fools throw off all self-restraint, restraint must be imposed upon them by others.

So for nearly two decades now I have thought that a Constitutional amendment to impose checks and balances upon the Supreme Court's self-aggrandized review power, was (as I sit here typing) just about two hundred years overdue and fifty years into the "critical urgency" stage. But so far as I knew nobody else on the planet thought the same thing.

I mention this because today I ran across somebody else who is actually banging this drum. Perhaps lots of people have been on the topic for years and I just don't get around enough, but for most of my adult life I have felt rather like the one-eyed man in the Kingdom of the Blind -- that something that seemed obvious to me was utterly invisible to the rest of the world and I couldn't imagine why. But the inimitable Ace of Spades not only shows up today (actually, several days ago but I've been offline for three weeks) making points I didn't know had ever occurred to other opinion-makers, but he links to yet more people who are making them, and are doing so persuasively, and are doing so with what seems to be far more authority and credibility than could hope to be wielded by any redneck amateur whose only qualifications are a decent amount of natural intelligence, a certain independence of mind, an ability and willingness to read, and a decades-long-standing interest in the topic.

Here's the Ace, whose comments I reproduce at some length (as is not my wont, preferring as I do for my readers -- both of them -- to follow the links), in order that they may easily be compared with a comment I left, just a few hours before seeing Ace's post, over at Concurring Opinions.

Do go read Ace's whole post, though. Unless you're my kids, in which case I remind you sternly that you are absolutely forbidden to visit that man's site until you are old enough to be a sailor, a consultant, or their equivalent -- that is, an Episcopalian priest.

Very well. Note the themes Ace sets out in the following passage:

Talking with Rob, we got into a sort of theoretical discussion about Supreme Court power. I brought up the fact that there was a radical asymmetry in what was needed for the Supreme Court to create law of its own volition; they merely needed five unelected judges to create law. On the other hand, to overturn a Supreme Court decision, a much more difficult hurdle had to be jumped: a two-thirds vote in both houses of Congress and a 3/5ths majority of all states, acting through their legislatures.

Compare this with the Presidential veto/Congressional override scheme. Congress may pass a bill with one half (plus one) of each house. The President may veto the bill-- but a two-thirds vote by both houses of Congress overrides the veto. Now, a two-thrids vote in both houses of Congress is a hard row to hoe, but it is doable, at least in cases of the most unpolular Presidential vetoes.

There isn't a radical asymmetry between what is needed to block legislation and what is needed to overcome that blockage. An asymmetry, yes, but not a wildly disproportionate one.

In the case of the Supreme Court, anything that five unelected, appointed for life judges decide is the law is the law, and remains so in perpetuity, for all practical purposes. The Amendment process is very difficult (by the Framers' design), but the Supreme Court has arrogated to itself the power to amend the Constitution by a fairly easy mechanism. Five votes.

Why is there nothing in the Constitution similar to Congress' power to override the President's veto? Why is it not spelled out that Congress may override the Supreme Court with, say, a three-fifths (or two-thirds) vote in both houses?

Because, as Rob mentioned, the power of the Supreme Court to overrule the decisions of the political branches of government is nowhere in the Constitution at all. It was asserted by John Marshall in Marbury v. Madison, he himself deciding that, if the nation were ruled by a charter, and the courts were especially competent to interpret that charter, well then, by implication, the Court had the power to overturn legislation and executive actions which the Court believed were in violation of that charter.

But this is assumed authority by the Court. One the nation has acquiesced in, but assumed authority nevertheless.

As the Framers did not seem to ever contemplate the Court having such an enormous power -- a five-man veto over the any law passed in the United States, whether by the US Congress or any state legislature -- it's hardly surprising they didn't build into the Constitution a reciprocal, symmetrical override power to veto the veto. Having not planned on the Court having such power in the first place, they never contemplated the political power to check the Court's power.

You don't invent an umbrella if you never imagined the possibility of rain.

Now, this is all very theoretical and perhaps silly -- given that this is such a big step that no one at all is discussing -- but perhaps it's time for the Constitution to catch up with the Court's self-granted power of reviewing all legislative and executive action by amending the Constitution to provide for a 3/5ths congressional override of any Supreme Court decision. If we have a system of checks and balances -- or rather checks and counter-checks, as the veto/override pairing provides an example of -- where, precisely, is the counter-check on the Supreme Court? The Supreme Court has a check on the political branches, but where, precisely, is the political branches' counter-check?

If the Supreme Court can nullify any congressional or presidential action, doesn't the symmetry of check and counter-check suggest that Congress should have the power to in turn nullfy a Supreme Court decision?

You're making great sense, there, Ace. Now we turn to my visit to Concurring Opinions. Daniel Solove states, in passing:

Posner argues for judicial restraint because "when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head." (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

Here is my response -- and note how much in accord with Ace it is. Ah, how refreshing it is not to feel alone in the wilderness...

But it is self-evident that the judicial branch is the branch of government that is least subject to checks and balances, and in particular is least answerable to the public for malpractice in its behavior or folly in its policies. A President who, in the opinion of the People, gets the balance wrong, is subject to the consequences of their displeasure as expressed in the ballot box, as is his party. A Supreme Court Justice who flagrantly imposes his own personal political agenda upon the entire nation by judicial fiat, is subject to...absolutely no negative consequence at all other than having people whose opinion he despises, think badly of him.

That's just one reason to value judicial restraint and judicial deference, generally speaking, to the directly representative branches of government.

I have no idea whether you have spent a lot of time on your blog arguing about the importance of "checks and balances" and complaining that the President is too free to behave as he chooses without being controlled by other branches of government. But nobody who supports Supreme-Court level judicial activism -- that is, nobody who objects to the principle Posner lays out in the passage you quote -- can really pretend, in the presence of intelligent people and the obvious absence of legislative and executive control over the abuse of the Supreme Court's powers, to believe in the importance of checks and balances per se. Whenever a supporter of judicial activism starts talking about checks and balances, the rest of us know perfectly well that he means "checks and balances on the behavior of people to whose political agendas I personally object." Therefore I hope, since you here seem to be objecting to the idea that judges should defer in general to the two branches that are directly accountable to the voting citizens, that you have not complained in the past about inadequate checks and balances on the President's behavior.

And a second, and even more important, reason:

When the Republican or Democratic party (in either the legislative or executive branches) makes what a majority of Americans considers to be an egregious error, it takes one election cycle to reverse the policy. But let a 5-4 majority of the Supreme Court, over bitter dissent from the one-vote minority, announce, "Thus saith the Constitution," and henceforth even if 65% of the American people -- an overwhelmingly majority -- are absolutely convinced that the five activists have misinterpreted the Constitution, it will be practically impossible for the mistake to be corrected, and utterly impossible for it to be corrected quickly. If it is corrected, it will be either by amendment to the Constitution -- for which you will require, in effect, a supermajority of Americans or else a majority of Americans very evenly distributed throughout the country -- or else by the dying off of the irresponsible five and their replacement with other judges more in tune with the People. And the latter process implies that, if the People wish the ruling changed, then they will have to set aside whatever other policy concerns they might have in order to keep electing Presidents with an eye to how they will replace any Supremes who might choose to retire during their term. This is exacerbated even further by the fact that an extremist Supreme has the timing of his own retirement entirely under his own control (barring his being smitten down by God) and therefore can deliberately postpone or hasten his retirement in order to maximize the likelihood that the President in charge of selecting his replacement will be a President who shares the retiring Supreme's agenda -- and who will therefore nominate a "suitable" replacement.

On difficult or obscure questions, the genius of the American system is that many different solutions may be tried in different states and jurisdictions, or at different times as different parties gain and lose control of the elective branches, and in this process of experimentation the American people are able to work out a practical and creative solution. But this whole give-and-take process -- the very essense of American democracy -- is short-circuited the moment the Supreme Court decides to jump in and decree that The Constitution Has Spoken -- whether it actually has or not.

Furthermore, decades of activism by Democrat-dominated Supreme Courts have now made it clear to everybody in politics that the single most important branch of government, the one that must be controlled by one's own party because it absolutely is not controlled by the American people, is SCOTUS. Have you not noticed that suddenly the nominees for Supreme Court are no longer men and women who are near the end of long and distinguished careers, but are instead relatively young bright lights who, if confirmed, can then be counted on (at least so the nominating President always hopes) to defend his agenda literally for decades to come? John Roberts will, barring major health problems, be Chief Justice of SCOTUS for probably the next twenty or thirty years, during all of which time neither of the other branches of government will have the slightest ability to reign in whatever flights of dubious sophistry he might choose to engage in. And that is precisely why Bush wanted him: Bush fully intends that five Presidential terms from now "his" Justices will still be carrying on the Bush "legacy." Thus judicial activism not only greatly increases the chances that the Constitution will be misrepresented in ways the voting public would never willingly countenance, and not only allows practically irreversible national policy decisions to be made by persons entirely unimpeded by checks and balances and accountability to a voting public, but it even taints and ultimately perverts the very process of nomination and confirmation that determines the long-term character of SCOTUS itself.

Supreme Court justices are so manifestly free from accountability, and their mistakes (as defined by the will and judgment of the People) are so manifestly difficult to reverse (especially in comparison to mistakes made by the other two branches) that it is very difficult to imagine a rational person arguing against the principle of extreme judicial restraint unless two things are true about the supporter of judicial activism:

1. He himself supports a political agenda that is not popular among the people as a whole and therefore that is unlikely ever to be put into practice by either of the two branches that have to answer directly to voters. A person who supports the extreme pro-abortion position of Roe, and a person who supports an equally extreme anti-abortion position, would each be tempted to find judges willing to say that the Constitution demands the imposition of his extreme agenda, because the American people if left to its own desires would almost certainly settle on a compromise position similar to those which prevail in Europe, which position would be unsatisfactory to those who (such as Justice Blackmun) support extreme positions on either side.

2. He is confident that the judicial branch, on the whole, is dominated by people who share his agenda and will rule the "right" way -- that is, in favor of the policies that he supports but that the majority of Americans do not. Thus Democrats who were perfectly happy to see sweeping innovations by the Courts of, for example, Brown v. Board of Education vintage, have suddenly had a religious conversion to the divine inviolability of stare decisis at the mere thought that the Supreme Court might someday have a majority of Republican judges who were willing to impose Republican political agendas. This dramatic change in attitude, which amounts to a demand that Republicans not be activists should they gain control of SCOTUS from people who have spent decades celebrating judicial activism, is entirely due to a dramatic drop in Democrats' confidence that they will always control the Supreme Court and will therefore always be able to perpetrate, rather than be targeted by, SCOTUS activism.

Solove at CO has not seen fit to respond to me, by the way, but I don't blame him in the slightest, seeing as how no man should ever be expected to respond to a comment on his own blog that's longer than the original post -- much less to a comment so long that the commenter has to resort to two full comments adequately to vent his choler.

Finally, as long as this post is, it still falls very short of being anything like a full exposition of my views on the proper role of the Supreme Court and on the disastrous effects of judicial activism upon the Supreme Court itself as an institution. If you are insane enough to want my full philosophy on SCOTUS and on Constitutional interpretation, then the best I can do is...well, first, to recommend that you have yourself committed. But failing that, you can see my extensive comments on an old post over at Alexandra's remarkable All Things Beautiful blog.