I'm sure you're absolutely right that "the Senate has become institutionally incapable of fulfilling its duty to convict all but the worst dirtbag federal magistrates, judges, appointees, presidents. Neither will it trim the jurisdiction of federal courts."
Yet the Congress must act first: The Senate cannot bring a bill of impeachment; only the House can. Then the Senate can convict — or not.
Yet it appears Congress will not impeach; nor will they stipulate "Exceptions" or constraints on the power of the federal courts, let alone the Supreme Court — the tools the Constitution explicitly grants them in Sections 1 & 2 of Article III, in order to counter and correct judicial usurpation of the liberties of the people and the just, retained powers of the several States — powers that were deliberately reserved to the States and thus to be protected against federal encroachment. The Court this week nationalized, or federalized, what have been universally recognized as State powers for the past 239 years — i.e., marriage, and provisions WRT matters concerning healthcare.
What is the point of devising new tools, or novel amendments, when the tools we already have are being ignored? How long before the new tools are themselves ignored?
I think you are absolutely right to worry that "more democracy" would do more harm than good. But this appears to be what Cruz is calling for, with his proposal to make any judge or justice holding lifetime appointment (subject to "good behavior") "directly accountable" to the People in a national referendum taken every eight years.
We are a constitutional Republic, not a direct democracy. Our electoral conventions are democratic; but the Republic is defined by the Constitution, not by the direct will of the people. That will is subjected to, and is constrained by, fundamental constitutional principles, preeminently the separation and balance of powers, and strictly enumerated powers of Congress. As noted above, Congress has the power of Impeachment and of constraining the Supreme Court's natural tendency to devolve into what Thomas Jefferson called "the tyranny of the oligarchy." Which plainly is what we have today.
Two last thoughts before closing: (1) Plato, founder of political philosophy, detested the very idea of "democracy," thinking it the fast route to mob rule. Certainly that notion was particularly well validated by the French Revolution. Arguably, "mob rule," manipulated by ideological activists, increasingly is what disorders American society these days. In consequence, there is no "rule of law"; there is only the "rule of men."
(2) What was truly shocking to me respecting the two SCOTUS decisions this week was what they had in common: Both were usurpations of the powers of the several States recognized under the Tenth Amendment. Both cases were demonstrations of frank judicial tyranny predicated on a contempt for the Constitution, clearly in complete breach of their own Oaths of Office.
In short, no "Good Behavior" there. The constitutional prescription in such a case is Impeachment and/or congressional modification of SCOTUS jurisdiction.
But no one seems to have the stomach for this, these days.... So, I believe you reach the just conclusion that what is needed is to reform, not only the Senate, but Congress as well. That sort of thing is resolved in the electoral process. That takes time; but time is what we seem to be running out of.
But the "demos" (the American people) hasn't got a clue about this pressing need.... They don't notice (or possibly they don't much care) that they are being ineluctably, systematically deprived of their historic constitutional liberties. They are too often willing to "sell their souls for a mess of pottage."
I don't have a clue how to solve that problem — which is fundamentally a moral problem. But I feel pretty sure that neither Ted Cruz's, or Mark Levin's "prescriptions" would make much of a difference.
Dear Jacquerie, thank you ever so much for your thoughtful and thought-provoking essay/post.
You might have a blind spot in your peripheral view and it's not your fault nor anyone else with the same blind spot. Ted Cruz alluded to it, which is the fact that the Article V movement will grow if Congress and SCOTUS don't listen. Well, the fact is the Article V movement is already growing very rapidly at breakneck speed, but we don't hear about it much from the MSM presumably because they are Snobs and don't know yet how to handle a "radical" "fringe" movement by state legislators.
Her's the latest from the COS Project (http://www.conventionofstates.com/the_jefferson_statement )
But the Convention of States movement is achieving massive victories in the fight for liberty.
Just this year , we filed the Convention of States application in 34 state legislatures. Of those 34 states, 19 have passed initial committee votes already, after filing.
Additionally, 3 state Senate chambers and 8 House chambers have moved from Committee to passing the application via their respective floor votes thus far.
All of this progress builds on the valiant efforts of activists in Georgia, Alaska, Florida, and just recently Alabama who have all passed the COS application in both houses!
> "So, I believe you reach the just conclusion that what is needed is to reform, not only the Senate, but Congress as well. That sort of thing is resolved in the electoral process. That takes time; but time is what we seem to be running out of."
Indeed time is short. We need the states to exercise their Article V authority by carrying JUST ONE amendment across the finish line, then others may follow but the first one will be the game changer. The amendment they first get over the finish line must be designed so its administration and enforcement are solely in the hands of the States, not the Federal Government. The first completed Article V amendment should be "new", and both broad and specific, simple yet powerful, and drafted to address state powers that level the playing field between the States and the Federal Government. The amendment should be viewed as benign by the general populace and completely justified in their minds for States to have.
There are 7.398 state legislators. They can be viewed as a backup to the failed representational body that is presently Congress. These 7,398 legislators occupy 99 legislative chambers (Nebraska has only one chamber). Each state legislative chamber appoints one delegate to the Article V Meeting of States. It takes 66 delegates from 34 states to propose an Article V amendment. Only 66 people are needed. No governor, no federal agency or court or federal body of any kind can stop or interfere with the work of the 99 delegates sent to the meeting of the states. This group of state delegates would hold more constitutional power of authority than any other group in government. They remain beholden to their state legislatures and no one else.
Conservatives and republicans control 66 of 99 state chambers. Republicans in state legislatures are generally much closer to the people and are more conservative as a result.