The founding fathers created a masterful document with the constitution, and recognized that only groups of people with conflicting interests can and will act on a regular basis to keep other, competing groups from amassing too much power.
Typically this is thought of as the balance of federal power, between the executive, legislative, and judicial branches of government. However, there are many other such balances, one of the most important being the balance of power between the federal government, the State governments, and the people.
With the passage of the 17th Amendment to the US constitution, the direct election of senators, done in a spirit of greater democracy, instead resulted in a horrific imbalance of power. The States, no longer able to appoint senators, were stripped of their ability to restrain overreaching federal power. And likewise, the people were denuded of State protection from federal involvement in their individual lives.
Repeal of the 17th Amendment is impossible, because senators revel in no longer having to respect or act in the name of, and with responsibility to, their elective State. In fact, many senate seats are just blatantly purchased by wealthy men for that very reason, so that they only need to pay any attention at all to their State except for a brief time prior to reelection.
But there is an alternative, in effect recreating the senate, but as a new, independent body that is a function of, and responsible to, the individual States, acting to not only restrain federal power, but to reduce federal power to its constitutional boundaries.
It is a Second Court of the United States. Subordinate to the US Supreme Court, the Second Court is *not* a federal court, yet it is superior to the federal District Courts.
Like the senate, it is composed of two State judges, appointed by their respective State legislatures, to six year terms concurrent with their two senators. Unlike federal courts, whose purpose is to determine the constitutionality of laws, their purpose is to determine the *jurisdiction* of cases brought before the federal bench.
That is, once the lower federal courts have examined the law, up through the federal District Courts, as do some 8,000 cases every year, instead of going to the SCOTUS, they would first go to the Second Court.
While any federal judge can seize on a local or State civil or criminal case, and in effect, “federalize” it, for once there would be a court that after hearing the cases constitutional merits, could choose to decide that it is *not* a federal issue, so the case should be returned to the State of origin for determination as a State, not a federal issue.
A prime example of this is the State death penalty. Federal judges will often intervene in such cases solely because they do not *like* the death penalty, under any circumstance. So much so that it takes decades before a convicted murderer can be executed, if then.
But the Second Court, representing the States, could intervene, and tell the lower federal judge that this case is *not* a federal case, so it will be remanded to the State, which may then carry out the execution with no further delay.
Yet doing so will just prevent future growth of federal intervention by activist judges. How will the Second Court actually reduce the size of the federal government?
With its one original jurisdiction. That any lawsuits between the States and the federal government must *first* be held in front of the Second Court. This, in effect, gives the States a solid ability to nullify onerous federal law, no matter if it has been around 50 years.
Importantly, as a check to the Second Court, so that it does not have too much power, cases heard before it can still be appealed to the SCOTUS. But then, as now, the SCOTUS can only hear a few dozen of those 8,000 cases appealed to it each year. But if the SCOTUS refuses to hear those cases, instead of being returned to the federal District Courts, they will be returned to the Second Court, and if it has decided that the case is a State issue, that is the end of it.
As a permanent body of 100 judges, the Second Court will thenceforth act as a permanent pruning mechanism, to keep the federal government limited to its constitutional authority, and nothing more.
Join the debates as they happen this summer. Journal of the Federal Convention