Constitutional Proposals Part III: The Judiciary

Continuing my critique of our Constitution as a tool of government, I proceed now to the issue of the judiciary. Dahl points out the power of the federal judiciary in what has developed as judicial review as being, in essence, “judicial legislation” or policy-making (19). Although there is an apparent, even critical, benefit to having a judiciary with the jurisdiction to review laws for the purpose of assuring their constitutionality, it is, as Dahl notes, a rather undemocratic notion that a group of nine individuals, appointed (not elected) for life, has the authority to “declare as unconstitutional laws that (have) been properly passed by Congress and signed by the president” (18). In order to amend for this constitutional deficiency, I propose the following.
I do not see a need to change the basic structure and jurisdiction of the Supreme Court and the federal judiciary. Nor do I propose the abolishing of judicial review, but rather, simply a limit to the scope of its power. I believe, as Dahl suggests, that the Supreme Court should have the authority to declare as unconstitutional laws which impinge upon the most basic tenants of democratic belief and practice, such as the protection of rights and civil liberties, political equality, universal suffrage, etc. However, in a departure from current judicial precedence and practice, I would propose a constitutional amendment limiting binding decisions by the Supreme Court to cases in which there is unanimity among the ruling justices and constitutionality is clearly threatened (that is, a unanimous court may bindingly rule a law unconstitutional only by demonstration that it is so according to the strict construction of the constitution). This is not to say that the court can not rule upon laws in which constitutionality is vague or in which there is not unanimity among the justices. The difference would be that in such cases, the court's decision would be non-binding. A non-binding decision would serve the purpose of calling attention to an issue which the court deemed as being unconstitutional. Following such a ruling, if there was in fact broad consensus in the media, among politicians, and in the general public, then there would be a strong likelihood of the measure in question being overturned, via the democratic procedure. By the same token, the likelihood of rulings leading to the repeal of laws that are generally accepted as being constitutional would be almost non-existent, while judicial policy-making would be practically impossible.