U.S. Constitution – Treehouse Writers

I keep seeing memes go by on social media that list changes we need to make once we get the fascists out of office. There are some good items on those lists and the people sharing them have good intentions, but at least two of the items drive me nuts: term limits for the Supreme Court and ending the electoral college.

It’s not that I disagree with those ideas – the electoral college should have been tossed out long ago and while I’m generally skeptical about term limits the lengths suggested are reasonable – but rather that they aren’t going to happen.

The Constitution provides for appointment for life for Supreme Court justices (and all federal judges) and it also sets up the electoral college. To get rid of those things, you need a constitutional amendment.

Getting a constitutional amendment is hard and in the current political climate probably impossible even if we throw all the bastards out in 2028.

However, there are things we can do that do not require amending the Constitution, and one of them would do a much better job of fixing the current disaster of the supreme court than term limits.

We need to expand the court.

There is no limit on the size of the court in the Constitution. The size of the court was set at nine members – eight associate justices and a chief justice – in 1869. At the time, the population of the United States was about 39 million, or roughly 10 percent of what it is now.

We actually need a larger court to get to all the issues the Supreme Court should handle. We need more judges on the federal district courts and the courts of appeal as well.

Further, term limits wouldn’t even apply to the current judges we need to get rid of, because any amendment would likely exempt them. We need to change the Supreme Court immediately and expansion would do that. Continue reading “The Changes We Need”…

Rethinking All the Rules

by Nancy Jane Moore

July 1, 2022June 30, 2022

On the first day of our constitutional law class, a hundred or so of us assembled in a large classroom set up something like a theater, with two long rows of steps down to the platform and podium used by the teacher. It was the beginning of the second semester of our first year and we had survived thus far, so we were cocky enough to be talking noisily.

Then the professor came in: Charles Alan Wright, whose name graced various textbooks, who argued regularly before the Supreme Court, and who was particularly noted at the University of Texas law school for coaching the aggressive intramural football team the Legal Eagles. By the time he reached the front of the room, you could have heard a pin drop.

He looked around at us and then said, in a mild voice, “Would someone please give us the case of Marbury v. Madison?”

Now anyone in that room could have explained Marbury v. Madison. Hell, we learned about it in high school. Plus we were law students, legal nerds by definition.

For those who’ve forgotten high school or who aren’t from the US, it’s the case where Chief Justice John Marshall ruled that the Supreme Court can weigh in on the constitutionality of laws and actions by other branches of government. It’s a gimme question. Wikipedia has a good explainer on the case.

Yet everyone else in the room breathed a sigh of relief when Mr. Timmons raised his hand and gave the answer. That’s just how intimidated we were by the professor and by the importance of constitutional law.

Here’s the thing, though. The one thing that didn’t occur to any of us was to question whether Marbury was a good idea. I mean, it would have been like questioning the gospels in a Baptist Sunday school.

Professor Wright certainly didn’t raise the point. I doubt he ever questioned it. But after the last few rulings of the current Supreme Court, it’s pretty clear that allowing a group of unelected lifetime political appointees to be the sole arbiters of what’s constitutional is one of many flaws in our system. Continue reading “Rethinking All the Rules”…

A Few Words About the US Constitution

by Nancy Jane Moore

March 5, 2022

Elie Mystal, who writes about legal matters for The Nation, has written an excellent book about what’s wrong with the U.S. Constitution: Allow Me to Retort: A Black Guy’s Guide to the Constitution. I reviewed this book for Washington Lawyer — the District of Columbia Bar magazine — and I recommend that everyone who is concerned about the future of the United States and our democracy read it.

I know a lot of people worry that if we try to fix the Constitution we’ll lose the good stuff in it, but the last few years have made it very clear that the flaws in it — both the ones built in by those who didn’t want true democracy and the ones that have been introduced by some very bad court decisions — are too damaging to ignore.

But don’t take my word for it. Read Mr. Mystal.