1937 All Over Again

For someone claiming unalloyed fealty to the Constitution, Rick Perry sure does want to tinker with it. He’s called for repeal of the 16th and 17th Amendments, and he wants new ones to outlaw abortion and gay marriage.

This guy wants to take our founding document and tailor it to fit his personal whims. That should scare the living daylights out of any American.

Equally strange are his plans for the Supreme Court. He wants rolling term limits for Justices, and he wants to give Congress the power to overrule verdicts by a 2/3 vote. Both ideas are wretched, and both have been tried before.

In 1937, FDR was in a tough spot. He had big plans for the country. He was going to engineer a just and fair society, but the only thing standing in his way was the Supreme Court, who kept striking down his initiatives on constitutional grounds. Accusations of what we call “judicial activism” soon followed.

Grim and unremitting as Tiberius, he made a mission of bending the Court to his will. He pondered the same ideas as Perry, but at the time, both were considered unconstitutional and futile. In his frustration, Roosevelt proposed the Judicial Procedures Reform Bill, under which he would be granted the authority to add a Justice of his own choosing for each sitting Justice over the age of 70.

It came to be known as the “court packing plan,” and it was an utter disaster for him. He introduced the concept to the public in one of his Fireside Chats and was shocked to find the media, as well as the general public, reacting to it with hostility the next day. The House Judiciary Committee allowed the bill to stall and wither, the Court remained intact, and the President’s credibility was irretrievably damaged.

There are two lessons every world leader needs to understand:

1. don’t get involved in a land war in Asia, and
2. don’t anatgonize the Supreme Court

I’m not even sure what Perry thinks his plan would achieve. Justices are appointed for life to insulate them from the changing winds of politics. They have the liberty (and responsibility) of taking the long view, both towards the future and from the past. Make them subject to term limits and frequent turnover, and we’d be plunging jurisprudence into an anarchy of contemporary whims. Giving Congress the power to overrule the Court’s decisions has much the same result, and the worst implications of the “living Constitution” ideology would rear their head.

Either Rick Perry doesn’t think much before he opens his mouth, or he’s a dangerous megalomaniac. Neither type of personality is what we need in the White House.