by Norm Winick
Lane Sunderland, a professor of Political Science at Knox College and a nationally recognized constitutional scholar who from 198889 was a United States Supreme Court fellow doesnt think that Republican congressional candidate Andrea Zingas proposed constitutional amendment is a viable option.
Zinga, last week, proposed a federal constitutional amendment that would allow the Senate to reverse court decisions by a two-thirds vote.
Both she and fellow-conservative Sunderland allege that the court has overstepped its authority at times. Sunderland, in reviewing Zingas proposal, says she has some of her facts wrong. "It takes two-thirds of both houses of congress to approve an amendment before it goes to the states and it takes three-fourths of the states to ratify it."
"They do not need to be proposed in the Senate, as she stated. James Madison introduced the Bill of Rights in the House of Representatives."
Getting the constitution amended is indeed a daunting challenge. "More than 10,000 amendments have been proposed and only 33 received enough support in congress to be passed on to the states. Only 27 of those passed the states and the first ten were in 1791. Since 1791, only 17 have been ratified. The 27th and last, the one affecting elected officials pay, was first proposed in 1789."
Zingas proposal is not new, according to Sunderland. "Sen. Robert LaFollett once proposed an amendment allowing two-thirds of the Senate to overrule a court decision. Robert Bork supported an amendment to allow a simple majority of each house to override any federal or state court decision." Both went nowhere.
Sunderland says that hes among the many scholars who agree with Zingas premise that the court has overreached at times but he says her remedy, like any to curtail the courts power, is "a blunt instrument." "Theres no guarantee that only wrong decisions would be overturned. There have been many unpopular decisions over the years that turned out to be the right thing to do. Brown vs. Board of Education is one."
"There have been many times that the right decision is not the popular one. There is currently a lot of support for proposals to allow witnesses, particularly juveniles in sexual abuse cases, to present video testimony. The court, unpopular as it may be, has stuck with the constitution which gives the accused the right to confront witnesses against him. Rejecting popular opinion for the greater good is the price we pay to live in a liberal democracy."
Sunderland recognizes that we have a very divided Supreme Court. "Twenty-seven percent of Supreme court decisions over the last several terms have been by 54 decisions. Some of the most critical, such as Bush vs. Gore and Roe vs. Wade have been decided by a divided court."
"In spite of the fact that I object to some of the things the court has done, I would not want to see her proposal go into effect." I think a more interesting concept has been proposed by a scholar at George Washington University Law School, Jonathan Turley (a Knox alum). He calls it unpacking the court. It involves increasing the membership of the Supreme Court to 19, phased in over several presidencies. He claims a greater number of justices would dilute the power of any one."
"Under Zingas plan, were throwing in the towel. That bothers me. In spite of my agreement that there are judges who have overreached their authority."