IT’S WORTH CONSIDERING: Ted Cruz: Constitutional Remedies to a Lawless Supreme Court.

The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”

But the Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. . . .

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. . . .

Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. . . .

I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years.

It is time to give serious consideration to such a constitutional amendment. Very few lawyers are exposed, in today’s law schools, to any method of constitutional interpretation other than “living” constitutionalism. Accordingly, the existing and future generations of Supreme Court Justices–drawn mostly from law schools such as Harvard and Yale, which are dominated by elitist progressive, living constitutionalist faculty–cannot be counted on to appreciate, much less adhere to, public meaning originalism. If this is the case, neither the remote threat of impeachment nor the replacement of Justices with new ones will check runaway Justices intent on acting like super-legislators.

Giving more power back into the hands of We the People is desirable. But do the American people care enough to mobilize to the extent required for ratification of a constitutional amendment? It takes 2/3 of both Houses of Congress (or 2/3 of States acting in convention) to propose a constitutional amendment, and then 3/4 of States must ratify.  I don’t know.