A Discussion of the Amendment:
It can be argued that the Federal Government has accumulated authority far in excess of what the
framers of the Constitution intended. Perhaps this is due to the adoption of the Seventeenth Amendment. Prior to this, it was intended that State appointed Senators would preserve a balance between the State and Federal Governments. In any case the States have lost their direct participation in the Federal Government.
Over time as the Federal Government has asserted more and more authority, the Supreme Court has become the last check on this unbalanced power. However, it is problematic to depend on a Supreme Court wholly appointed by the Federal Government to be an effective check on overreaching Federal power. This Amendment is intended to address that problem.
Notes on the Details:
If the States are to appoint Supreme Court Justices, lifetime appointments would result in excessive
time passing before all the States have a turn. If three States have a turn each year, all will have a turn in seventeen. Two States a year, all in twenty-five. Four a year, all in thirteen.
It does not seem likely that two-thirds of the States would demand, nor three-fourths ratify, an Amendment that might make them wait twenty-five years for a turn. Nor does it seem likely that thirteen would be acceptable but that seventeen would not.
Too much turnover will not be good for the Court nor the Country. Nine Justices serving three years each would seem to be too much. Too many Justices, such as twenty-five serving six years each, would also seem to be undesirable.
The number of thirteen was chosen as not too many and with a reasonable turnover, but moreover as a reminder that it was the original Thirteen States that in effect hired the Federal Government to perform a very specific and limited role. Thirteen Justices of which three are appointed each year, less than a fourth, results in four or five year terms.
Allowing sitting or retired Justices to be appointed could extend their tenure, and the opportunity to be reappointed would hopefully keep them mindful of the powers reserved to the States by the Constitution.
Thoughts on Adoption:
It seems unlikely that super majorities of the House and especially the Senate would ever propose an Amendment designed to curb the growth of Federal power, however if a sufficient number of States have called for a Convention for the purpose of proposing this Amendment then, much as with the Seventeenth Amendment, the Congress might finally propose the Amendment to stave off the need for a Convention.
A Convention could be called, but as this has never been done and might have unpredictable additional outcomes, the Congress might well consider this single Amendment the much lesser threat.
In any case it seems that the States must be the champions of this Amendment if it is to succeed.
Some Final Thoughts:
Much of the strife and prominence of national politics can be traced to the notion that the Federal
Government has grown to have an undue effect upon our daily lives. An overreaching Federal Government need not, and indeed often does not, strive for the solutions that preserve our individual preferences. Instead, it often implements "one size fits all" polices that are the least offensive to the populous as a whole while bowing to the most vocal and well funded interest groups.
The freedom of movement is one of our most basic freedoms. The ability to move to better schools, lower taxes, better jobs, safer neighborhoods, etc. (the list is as endless as we are individual) is what forces the various State Governments to compete toward the best solutions for the social and economic issues of our day. But no matter to which State we move, we cannot escape the Federal grip on everything from light bulbs and toilets to drugs and education.
This Amendment is not about trying to have a more conservative, or liberal, Supreme Court, Federal Government or Country. But rather about reducing the presence of the Federal Government in our everyday lives by allowing the States to be, well, States.
States will naturally be more conservative, liberal, cosmopolitan, rural, etc. as a result of the individuals and life styles therein. We have fifty State Governments staffed with people every bit as bright and dedicated as any in the Federal Government.
This Amendment is about unleashing fifty teams that can lead with success and learn from the missteps of the others, all the while being evaluated by their respective populous of individuals who can score them by vote, petition, or if all else fails, exodus.
Finally, this Amendment is not crafted with the intent to produce dramatic or rapid change in our system of government. But rather to slowly, steadily and surely move government power closer to, and thus more considerate of, the individuals effected.
Humbly submitted to the Governors of these United States, and any other interested parties, for what is
hoped to be vigorous debate and ultimate adoption,
Richard Durbin
