The US constitution is a masterpiece of checks and balances, because the founding fathers realized that a written law invites evasion as soon as it is written. Therefore only bodies of people with competing interests can function for any length of time.
This being said, we first need to know what these checks and balances are, and then we must take the corrective action to restore them if imbalance exists.
The most egregious imbalance was created when, in the balance between the federal government, the state governments, and the people, the states were stripped of power by the 17th Amendment.
This not only meant that the states could be oppressed by the federal government, but also that the states could no longer defend their people as citizens of their state, from the federal government.
This was the greatest victory of the Progressive movement, to put all citizens under the control of the federal government, whenever and however it saw fit. They ceased being citizens of their states.
Unfortunately the repeal of the 17th Amendment is impossible, because senators enjoy being federal employees instead of servants of their states. They would never agree to repeal.
And since the early part of the 20th Century, Progressives have indoctrinated the public that a constitutional convention is “too dangerous”, so must never take place.
So the way to correct this terrible imbalance cannot be just corrective. It must overcompensate and give the states enough power to reduce both the size and power of the federal government to more appropriate levels.
This must address as well all three branches of the federal government, executive power, legislative power, and judicial power.
The means is to create a Second Court of the United States. Not a federal court, but composed of two state legislature appointed judges from each state, on terms consecutive with the terms of their two senators.
This court would not decide the constitutionality of laws, which is a job for federal courts. Instead, as an inferior court to the Supreme Court, they would still be superior to the Federal District Courts, and would determine if cases appealed from these courts were indeed of federal jurisdiction, or if they should be returned to the states as not being constitutional issues, just intrusion.
Importantly, it would also have a single original jurisdiction: as the first court to hear lawsuits between the federal government and the states.
This would mean that the states, not federal judges, would be first to decide such lawsuits. If enough judges from enough states agree, the effect would be of a “safe” form of constitutional convention. The SCOTUS could not overturn their opinion.
But even more so, because the Federal District Courts normally have some 8,000 cases appealed to the SCOTUS each and every year, which can only hear at most a few dozen. So if these cases must first be decided by the states, as to jurisdiction, if the SCOTUS rejects them, they would return to the Second Court’s *jurisdictional* decision.
This could slash the amount of federal judicial bullying of the states, and also diminish the ability of the POTUS to push around states with lawsuits. Instead, the states could easily sue the federal government, hoping that enough of the other states would agree with them to overrule the feds.
Excellent post! A more fleshed out solution to the conflict of interest problem I’ve harped on when federal courts decide cases in which the federal government is one of the parties. In other cases, that would never be tolerated, nor should it be here.
VERY interesting ideas! Very interesting indeed!