WI: a US constitutional amendment compelled advisory opinions?

(Note that this might be before or after 1900).

Suppose that US were to have a constitutional amendment something like this:

*No court can convict anyone in violation of statute law as published at the time of the conduct concerned, nor deprive a private person of rights or property as allowed by statute then in force

*The Supreme Court of United States shall issue an advisory opinion on the constitutionality of any proposed law on request of one fourth of the membership of either House of Congress, or of President, or of the legislatures of any three States

*Both advisory opinions and solutions of cases are by stare decisis binding on all future Supreme Courts

*The majority of Supreme Court may propose constitutional amendments and submit them to States for ratification.

What would the effects be? And when could something similar pass?
 
I really don't think there's a likely time for passage. The highpoint of the SCOTUS's appeal is in the 1960s-1970s when its decisions became vehicles for the civil rights movements. Progressives of earlier eras placed little faith in the Court (eg FDR). Additionally, the undemocratic nature of the court as a vehicle for change prompted bigger backlashes than might otherwise have existed.

Advisory opinions would only increase the authority of the Supreme Court and require it to involve itself more and more in the political process rather than in the judicial one, which is complicated enough to begin with. Furthermore, the US Constitution itself grants no one body or branch of government supreme authority over the Constitution, thus allowing but also requiring all branches to be engaged in the process of upholding its provisions.

Next, the principal of stare decisis is a bit tricky: as it stands today, it simply expresses the general principle of common law, that something profoundly new must be present in order to deviate from previos practice and interpretation. As a phrase, it has been coined as a way to avoid revisiting thorny topics and thus is something of a cop out. When John Marshall first argued for the right of the Supreme Court to judicial review, he did so because 1) the Constitution is the highest law in the land and 2) the duy of a judge is to say what the law is. Hence, the Constitution requires that a judge prefer constitutionality over stare decisis, making the whole business somewhat murky.

Lastly, a point by point analysis:

(Note that this might be before or after 1900).

Suppose that US were to have a constitutional amendment something like this:

*No court can convict anyone in violation of statute law as published at the time of the conduct concerned, nor deprive a private person of rights or property as allowed by statute then in force

This is how the system works, but vests unnecessary authority in the publishing of statute law (which itself muddies the process of common law which is the premise of the US judicial system). Probably a bad idea resulting in more procedural tie-ups.

*The Supreme Court of United States shall issue an advisory opinion on the constitutionality of any proposed law on request of one fourth of the membership of either House of Congress, or of President, or of the legislatures of any three States

This firstly wouldn't take a constitutional ammendment. Congress could grant SCOTS such power by legislation (as they currently prevent the Court from granting advisory opinions via the same means).

*Both advisory opinions and solutions of cases are by stare decisis binding on all future Supreme Courts

See above. This essentially means the Supreme Court gets to re-write the Constitution a little bit each time it makes a decision.
*The majority of Supreme Court may propose constitutional amendments and submit them to States for ratification.

Why can a simple majority of the SCOTUS do an end run around what it would take 2/3 of both Houses of Congress to do otherwise?
 
I really don't think there's a likely time for passage. The highpoint of the SCOTUS's appeal is in the 1960s-1970s when its decisions became vehicles for the civil rights movements. Progressives of earlier eras placed little faith in the Court (eg FDR). Additionally, the undemocratic nature of the court as a vehicle for change prompted bigger backlashes than might otherwise have existed.

Advisory opinions would only increase the authority of the Supreme Court and require it to involve itself more and more in the political process rather than in the judicial one, which is complicated enough to begin with. Furthermore, the US Constitution itself grants no one body or branch of government supreme authority over the Constitution, thus allowing but also requiring all branches to be engaged in the process of upholding its provisions.
Requiring advisory opinions would diminish the element of delay and uncertainty, where no one knows whether a law might be found unconstitutional until someone has actually broken it and been convicted, and even then the Supreme Court might reverse itself.
Next, the principal of stare decisis is a bit tricky: as it stands today, it simply expresses the general principle of common law, that something profoundly new must be present in order to deviate from previos practice and interpretation. As a phrase, it has been coined as a way to avoid revisiting thorny topics and thus is something of a cop out. When John Marshall first argued for the right of the Supreme Court to judicial review, he did so because 1) the Constitution is the highest law in the land and 2) the duy of a judge is to say what the law is. Hence, the Constitution requires that a judge prefer constitutionality over stare decisis, making the whole business somewhat murky.

Lastly, a point by point analysis:



This is how the system works, but vests unnecessary authority in the publishing of statute law (which itself muddies the process of common law which is the premise of the US judicial system). Probably a bad idea resulting in more procedural tie-ups.
Does it explicitly work so? The Congress and states are by Constitution forbidden to pass ex post facto laws, but courts are free to make them, because when they rule, they pretend that they declare what the law "always has been".
This firstly wouldn't take a constitutional amendment. Congress could grant SCOTS such power by legislation (as they currently prevent the Court from granting advisory opinions via the same means).
When and why was such legislation passed?
See above. This essentially means the Supreme Court gets to re-write the Constitution a little bit each time it makes a decision.
Which they already do without stare decisis.
Why can a simple majority of the SCOTUS do an end run around what it would take 2/3 of both Houses of Congress to do otherwise?
Yes, that was more questionable. Basically, when a Supreme Court of the day feels that a previous Supreme Court made an error in applying the Constitution, their recourse ought to be to the process of constitutional amendment (which is not retroactive) rather than reversing a previous decision (which is retroactive).
 
Requiring advisory opinions would diminish the element of delay and uncertainty, where no one knows whether a law might be found unconstitutional until someone has actually broken it and been convicted, and even then the Supreme Court might reverse itself.

Only if you believe the SC gets to make up its mind without regard to the merits of the case. The SC only gets involved if something about the case itself is murky enough to cause doubt. Hence, one could say, there's only doubt if there's doubt.

Does it explicitly work so? The Congress and states are by Constitution forbidden to pass ex post facto laws, but courts are free to make them, because when they rule, they pretend that they declare what the law "always has been".

This depends if you're willing to define ruling on the application of laws in given and distinct circumstances as "making" law. Again, though, the principals of common law require circumstances to be substantially different in order to merit a different outcome.

When and why was such legislation passed?

I've re-checked and I was in error. The SC decided that it can't be given such a power because of the wording of Article 3, Section 3 (The judicial power shall extend to all cases arising...)

Which they already do without stare decisis.

The notion of "stare decisis" is incumbent in the nature of a common law system. Granting such a notion the same status as the Constitution itself clouds the issue of constitutional interpretation.

Yes, that was more questionable. Basically, when a Supreme Court of the day feels that a previous Supreme Court made an error in applying the Constitution, their recourse ought to be to the process of constitutional amendment (which is not retroactive) rather than reversing a previous decision (which is retroactive).

To be honest, these last two are matters of opinion re the extent of previous judicial (over) reaching.

In principal, though, I think some of these points miss the value of a common law system over a statute or code system. The later involves an agreed upon code of laws, which judges must always enforce. The former involves an organic system of precedents which is always deferred to but always evolves with new legislation and new circumstances. The later is theoretically more predictable but in practice less so: applying a code almost always leaves it up to the judge to define specific circumstances. A common law system (which is what the US currently has) actually becomes more predictable: by defining a more myriad number of circumstances, it actually becomes clearer than a code. Granted, a large part of legal argument is determining which cases apply, but that's what lawyers are for.

IMHO, the consequences of introducing the kind of provisions you envision would increase litigiousness and decrease the efficiency of the justice system. The flexibility previously afforded by the present common law system would not disappear. Rather the inflexibility of the new system would lead to more voluminous amendments to the US constitution (similar to many state constitutions). Additionally, the increased power of the SC (and by extension the entire federal judiciary) would increase the difficulty of filling nominations to that body.

Note that personally I sympathize with the notion that US courts overreach their authority (eg. Bush v Gore). However, I think there are other remedies that may prove more helpful (term limits for judges, more SC justices, renewed focus on legislation as the nexus/source of civil rights disputes).
 
The Irish Constirution of 1937 does, in Article 26, expressly provide for the President to refer laws to Supreme Court for review of their constitutionality. There are other constitutions which also provide for judicial review of laws before promulgation, rather than on a ripe case or controversy.

Could USA follow suit?
 
Advising on request, sure. Proposing amendments; no. The Supreme Court is there to interpret laws, not make them. This would seriously violate the seperation of powers spirit.
 
The Irish Constirution of 1937 does, in Article 26, expressly provide for the President to refer laws to Supreme Court for review of their constitutionality. There are other constitutions which also provide for judicial review of laws before promulgation, rather than on a ripe case or controversy.

Could USA follow suit?

I suppose the US could amend the Constitution so that instead of "Presidential signing statements" - which don't stop laws from going into effect - we'd have "Presidential Constitutional Referrals" - which would. I'm not sure that this would be a healthy Constitutional change.
 
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