Failure modes of the United States, part 1a, a counterfactual

  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?   

Comments

[David Allen]

Well, my first thought was Brown vs. Board of Education, but a quick read of Wikipedia brought out that most of the legislation the Supreme Court overturned during the early Civil Rights era was state or local legislation, which that amendment wouldn't protect.

It's possible that segregationists might have been able to get some kind of a segregation-protecting law passed in 1958-1962, but it would have had to fairly bland and toothless to get two/thirds, and a strategy of chipping away at the most obnoxious parts would probably eventually kill it.

This would put more stress on the Democrats, earlier, but probably wouldn't result in a worse outcome than we got.*

Probably no Roe vs. Wade, but that not happening doesn't really look like a failure mode situation.

In other words, doesn't look like a new failure mode, no.

*The possible alternate 1960's are fascinating.

[Noel Maurer]

Internet pornography as we know it would not exist. The censorship clause of the Communications Decency Act of 1996 passed the Senate with 84 votes; I'd be amazed if Congress didn't overturn the unanimous (well, technically 7 with 2 concurring) Supreme Court decision that junked the CDA.

I'm not sure that would be a bad thing, to be honest.

More substantively, there are all the decisions limiting police powers, like Miranda. One can easily imagine a world where the law-and-order reaction of the seventies is much harsher, with higher resulting levels of racial tension.

Even without changing any of the basic civil rights decisions, that could lead to a very ugly cycle and take American history down a significantly more dystopian path.

And then there are decisions like Griswold or Loving. Would they have been overturned? I suspect not ... but the chance would have been there, with further untoward social consequences.

But wait! Game on. Go Jets!

[David Allen]

In practice, this would mean that the Supremes would be writing controversial decisions with the inexitable Congressional review in mind. They would probably be more specific and more limited, but it wouldn't necessarily mean that the Court's direction changed. It would simply be slowed down.

For example, I don't see the Miranda warning specifically surviving. However, I remember enough paranoia about The Man that the Supreme Court should have been able to write an opinion expanding the rights of the accused that at least 40% of the Congress and country would support.

There's an upside here too: while the Court would have to be more explicitly politically aware than in OTL, nominations would less politically loaded and the Court would in some ways be less politicized.

On the whole, you're probably right that the legal system would be somewhat less rights-based and that broadly this would not be a good thing. But does it really rise to the level of a failure mode?

Hope you enjoyed the game. I get to look forward to the Browns getting stomped by the Chargers.

[Noel Maurer]

Upon looking it over again, it turns out that almost all of the big Supreme Court decisions had to do with the states, rather than acts of Congress.

Y'know, David, your point about civil rights might apply to everything. A Wheeler-Bone world might look pretty much identical to our own.

Did the Supreme Court overturn any controversial federal legislation at all?