Gah. Still can’t sleep, but my concentration keeps coming in-and-out. Here goes a short post on a random topic.
The story of how the Supreme Court tried to hold up much of the New Deal is well known. Roosevelt tried to appoint six new justices, which thankfully failed, and the Supreme Court reversed itself. In an earlier post, I argued that it would have made little difference had the Court stuck to its initial rulings. All that would have happened would have been a constitutional amendment reading something like the following:
Congress shall have the power to legislate in all cases for the general interests of the union, and also in those in which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.
A less poetic version listed an economic laundry list (wages, health and safety, etcetera) and then said:
The due process of law clauses of the fifth and fourteenth amendment shall be construed to impose no limitations upon legislation by Congress or the several states with respect to any of the subjects referred to in Section 1, except as to the methods or the procedure for the enforcement of such legislation.
Such amendments would have changed pretty much nothing. The Gun-Free School Zones Act of 1990 would have been upheld, and that’s about it. So not a very big change.
That said, there was another very different amendment in play at the same time, proposed by Senators Burton Wheeler (D-Montana) and Homer Bone (D-Washington). It had a lot of support, and since Wheeler was one of the biggest opponents of FDR’s court-packing plans, it was probably the most likely amendment to pass. (Or so I take away from Bruce Ackerman’s book.) It read:
In case the Supreme Court renders any judgment holding any act of Congress or any provision of any such act unconstitutional, the question with respect to the constitutionality of such act or provision shall be promptly submitted to the Congress for its action at the earliest practical date that Congress is in session, but no action shall be taken by the Congress upon such question until an election shall have been held at which members of the House of Representatives are regularly by law to be chosen. If such act or provision is re-enacted by two-thirds of each House of the Congress to which such members are elected at such election, such act or provision shall be deemed to be constitutional and effective from the date of such re-enactment.
That is a bit like Canada’s “notwithstanding” clause. Congress would have been able to override the Supreme Court with a two-thirds vote. Unlike Canada’s clause, which requires a notwithstanding declaration to be re-authorized every five years, a Congressional override would have been permanent. It also would have required a Congressional re-vote, rather than merely authorizing one. On the other-hand, two-thirds is a rather high bar to jump over.
Unlike the more concrete economic amendments, which would have changed very little, it is not unreasonable to conclude that the Wheeler-Bone Amendment might have had very significant effects on American history. The question is how significant, and in what direction. Could a removal of a veto point create a failure mode?