For A Guy Who Says He Likes The Constitution, Rick Perry Sure Wants to Change It A Lot

In the book he released last year , Rick Perry advocated far reaching changes to the Constitution.

Doug Mataconis · · 31 comments

Like most conservatives, Rick Perry peppers his speeches with homages to the Constitution (not withstanding his secession comments one assumes Perry is referring to the U.S. Constitution and not that other one) and accusations that President Obama and the Democrats have stretched the authority of the Federal Government far beyond the plain words of the Constitution, and the intent of the Founding Fathers. Over at Yahoo’s The Ticket, though, Chris Moody notes that Perry has advocated several fundamental changes to the Constitution before he became a candidate for President:

Rick Perry has many ideas about how to change the American government’s founding document. From ending lifetime tenure for federal judges to completely scrapping two whole amendments, the Constitution would see a major overhaul if the Texas governor and Republican presidential candidate had his druthers. Perry laid out these proposed innovations to the founding document in his book, Fed Up! Our Fight to Save America from Washington.

Some of these are fairly standard ideas that you’ll hear from other conservatives such as the Human Life Amendment, which would permanently ban most if not all abortions, and the Federal Marriage Amendment, which would outlaw same-sex marriage nationwide. Perry also trots out the only canard of repealing the 16th Amendment, an idea that appeals to anyone who pays income taxes every April 15th, but not an idea that has any practical value. Each of these ideas has objectionable elements to them, of course, but they also aren’t very surprising since you’re likely to hear them from any other politician that appeals to social conservatives. Some of Perry’s other ideas for Constitutional reform, though, are best classified as being radical.

For example, he wants to eliminate lifetime tenure for Federal Judges:

Perry makes it no secret that he believes the judges on the bench over the past century have acted beyond their constitutional bounds. The problem, Perry reasons, is that members of the judiciary are “unaccountable” to the people, and their lifetime tenure gives them free license to act however they want. In his book, the governor speaks highly of plans to limit their tenure and offers proposals about how to accomplish it. “‘[W]e should take steps to restrict the unlimited power of the courts to rule over us with no accountability,” he writes in Fed Up! “There are a number of ideas about how to do this . . . . One such reform would be to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power. One proposal, for example, would have judges roll off every two years based on seniority.”

This isn’t necessary a strictly conservative idea. Several years ago, a group of mostly liberal law school professors made the same proposal, basing their position on the idea that life tenure for justices is undemocratic:

[T]he group proposes a form of term limits, moving justices to senior status after 18 years on the court. The proposal says that justices now linger so long that it diminishes the likelihood that the court’s decisions “will reflect the moral and political values of the contemporary citizens they govern.” To get around the Constitution’s prescription that justices serve for life, the group would let justices stay on the court in a senior role — filling in on a case, perhaps, or dispatched to lower courts — or lure them into retirement with promises of hefty bonuses. It would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases. (…) University of Chicago professor Eric Posner said the Constitution’s call for lifetime appointments is one element of American democracy that is never copied by other countries, perhaps because “it is very undemocratic.” “People who wield an enormous amount of power should not have lifetime appointments,” Posner said.

Of course, it’s precisely because it insulates them from the passions of the mob that the Founders decided to give judges lifetime tenure to begin with. By placing judges outside the political system, subject only to removal via impeachment and conviction pursuant to the Constitution, the Founders made the determination that the Judiciary, and the law, are best protected if they exist as far outside the political world as possible. There’s another reason that life tenure exists, however. As Alexander Hamilton argued in Federalist No.78, it provides for a measure of consistency in the law and helps to ensure that legal decisions aren’t based on the latest political fad:

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

Perhaps there’s a better way to go about maintaining a Judicial Branch than providing for life tenure, but nobody’s come up with it yet and what we have now has worked pretty well for the past 224 years. Messing around with something that works just because you’re upset about a few controversial decisions from a few “activist” judges makes absolutely no sense.

Perry also advocates eliminating judicial review as established in Marbury v. Madison by subjecting it to legislative veto:

Giving Congress the ability to veto their decisions would be another way to take the Court down a notch, Perry says. “[A]llow Congress to override the Supreme Court with a two-thirds vote in both the House and Senate, which risks increased politicization of judicial decisions, but also has the benefit of letting the people stop the Court from unilaterally deciding policy,” he writes.

The Constitution already provides for methods by which Congress can “overrule” the Supreme Court. If the Court’s decision merely involves an interpretation of Federal Law, then Congress is free, by a simply majority vote, to change the law accordingly. This has happened many times in the past. If the Court’s ruling involves a Constitutional interpretation, which I what I suspect really upsets Perry, then the Constitution provides a procedure in Article V for amending the Constitution. Alternatively, although this is a rarely used method that is likely carry a serious political price depending on how it’s used, the Constitution allows Congress to limit the jurisdiction of the Supreme Court. Article III, Section Two states the following:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Similarly, Congress could limit the jurisdiction of the lower Federal courts via jurisdiction, if it chose to do so. Effectively, then, the Constitution already gives Congress significant power over the Federal Courts. Adding to that power in the manner Perry calls for in his book is both unnecessary and unwise.

That said, one of the biggest mistakes that has been made in connection with Constitutional law has been adoption of the idea that only the Supreme Court has the duty to determine the Constitutionality of Federal Law. Perhaps the most egregious example of this came when President Bush signed the McCain-Feingold law into law even though he was saying in public that he believed the law was unconstitutional. Leaving that determination to the Supreme Court was a dereliction of duty on Bush’s party; if he believed the law was unconstitutional, he had an obligation to veto it. Originally, it was believed that all three branches would act to enforce the Constitution —- for example, if a President believed a law passed by Congress to be unconstitutional he should veto it. Instead, the other two branches have abrogated their role in this process to the Supreme Court and we have, I think, been the worse for it.

Finally, Perry also supports a Constitutional change that has become something of a cause celebre on the right, the repeal of the 17th Amendment and a return to the days when Senators were appoointed by state legislatures:

Perry writes that supporters of the amendment at the time were “mistakenly” propelled by “a fit of populist rage.” “The American people mistakenly empowered the federal government during a fit of populist rage in the early twentieth century by giving it an unlimited source of income (the Sixteenth Amendment) and by changing the way senators are elected (the Seventeenth Amendment),” he writes

This isn’t a new idea on the right, really. Bruce Barlett wrote about it at National Review several years ago, and both Glenn Reynolds and George Will have come out in favor of the idea. As I noted back in December, though, there’s something that doesn’t quite compute about the idea that making a procedural change to the Constitution will somehow erase 223 years of history:

From a procedural point of view the 17th Amendment is certainly one of the factors that has made the expansion of Federal power, and the erosion of Federalism, more easy to accomplish. Returning to indirect election of Senators *might* have a positive impact, but that will only happen if the Senators elected have a proper understanding of their role under the Constitution, and if the state legislators appointing them have that same understanding.

Furthermore, the changes that have taken place in the relationship between the states and the Federal Government can be traced to changes far more fundamental than the manner in which we select Senators:

The Civil War itself was the beginning in a change in the way Americans thought of their country. Where it used to be the case that people thought of themselves primarily as residents of their state, Americans today tend to think of themselves as Americans first. On top of all that, a long history of movement from place to place that people don’t necessarily think of the state where they live as “home” any more. For better or worse, going back to the Founders “original intent” on this issue is impossible simply because so much has changed over the past 223 years.

Perry’s proposal to repeal the 17th Amendment is perhaps the least radical of his proposed Constitutional changes, but it’s probably the one that’s most likely to be viewed by the general public as a step to far. In general, telling people that they should no longer be able to vote for a representative position is going to be a tough sell to begin with. In this particular case, it falls right into the hands of critics who say that the right is anti-democratic.

Which, perhaps, is why the Perry campaign seems so intent on pretending that the book these ideas are contained in doesn’t exist:

In an interview, [Perry campaign Communications Director Ray] Sullivan acknowledged that many passages in Mr. Perry’s “Fed Up!” could dog his presidential campaign. The book, Mr. Sullivan said, “is a look back, not a path forward.” It was written “as a review and critique of 50 years of federal excesses, not in any way as a 2012 campaign blueprint or manifesto,” Mr. Sullivan said. The campaign’s disavowal of “Fed Up!” is itself very new. On Sunday evening, at Mr. Perry’s first campaign stop in Iowa, a questioner asked the governor to talk about how he would fix the country’s rickety entitlement programs. Mr. Perry shot back: “Have you read my book, ‘Fed Up!’ Get a copy and read it.”

The problem is that Perry published the book last November during the height of the GOP triumph in the 2010 elections and the beginning of the Tea Party’s efforts to begin flexing its muscles on Capitol Hill. Kind of hard to disavow something that’s only nine months old. It’s going to take something better than that to explain why you thought it was a good idea to eviscerate the Constitution, Governor.