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January 15, 2017
Proposal would allow the Legislature to override Supreme Court decisions

If the Florida Supreme Court strikes down a law passed by the Legislature, Rep. Julio Gonzalez, R-Venice, a lawyer and orthopedic surgeon, wants lawmakers to be able to strike back and overrule the high court.

Rep. Julio GonzalezGonzalez has filed House Joint Resolution 121, a proposed constitutional amendment to Florida’s voters that would allow the Legislature, within a period of five years, to override court decisions that find legislative actions unconstitutional.

Gonzalez also filed an accompanying communication to Congress asking that a similar proposed amendment to the United States Constitution be passed.

Elaborating on the philosophies behind his proposal in an essay posted on TheRevolutionaryAct.com, Gonzalez said it was Thomas Jefferson who first identified the problem of the judiciary’s role in overturning rules it found to be unconstitutional.

Quote In a letter to Jarvis Williams in 1820, Jefferson wrote: “to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Gonzalez argues his proposed “Notwithstanding Clause” is needed to restore the balance of power among the three branches of government, and notes that Canada has had such a provision in its constitution that has “been working seamlessly since 1982.”

“At its implementation, our system of government was truly exceptional on the world stage because, among other reasons, its power was vested on the will of the people. Key to the protection of this reliance was the separation of power into three separate and co-equal branches of government restricted by a robust system of checks and balances,” Gonzalez wrote.

“Specifically not in the Constitution was an assignment to the judiciary of serving as the ultimate authority on the constitutionality of laws. And although the Legislature could always revamp a law the judiciary interpreted as meaning something different from what the Legislature intended, there was no provision that would allow the Legislature to override a ruling where the court voids a law as unconstitutional.

“With what most of us are taught about our government and our nation’s history, it is difficult to conceive that the Supreme Court would not have such plenary authority in determining what is constitutional and what is not. After all, the members of the highest court are learned individuals inhabiting positions designed to insulate them from the world of politics and partisanship.

“However, the fact is that these men and women, learned in the nuances of law as they may be, are neither insulated from the world of politics nor free of partisanship. One need only recall the consistent apportionment of Republican and Democrat justices on issues of gun control, redistricting, abortion, school choice, religious liberties, the scope of federal power, states’ rights, and religious education to realize that these predicable divisions amongst the various factions of the courts represent more than mere differences in legal opinion.”

In his essay, Gonzalez lists the judiciary’s “encroachments” that include Supreme Court rulings mandating that religious symbols be taken down from public places and prohibitions on prayer in public school events.

“And let us recall that these members are generally appointed to their positions without oversight by the electorate and generally remain there for the rest of their lives,” Gonzalez wrote.

“[A]n even greater threat than the inherent shortcomings of any court or its members is the finality of a supreme court’s decision on constitutional matters.

“When a supreme court writes an opinion on the issue of constitutionality, its decision has the same effect as if its author had written a note upon the face of the document, permanently changing its meaning, and in certain instances, its intent. Upon doing this, there is nothing the Legislature, chief executive, or the electorate can do to reverse course other than to undertake the daunting task of amending the affected constitution. Needless to say, this is a Herculean endeavor, which is overwhelming in scope for most court-enacted constitutional changes. Consequently, the effects of court rulings on matters of constitutionality stand unchallenged, permanently changing the supreme law of the land, and by extension, the society which it governs.”

Gonzalez proposes these constitutional amendments:

For Florida: “Any law, resolution, or other legislative act declared void by the supreme court, district court of appeal, circuit court, or county court of this state may be deemed active and operational, notwithstanding the court’s ruling, if agreed to by the Legislature pursuant to a joint resolution adopted by a two-thirds vote of each house within five years after the date that the ruling becomes final. Such a joint resolution is exempt from section 8 of this article and shall take effect immediately upon passage.”

For the U.S. Constitution: “Any law, resolution, or other legislative act declared void by the Supreme Court of the United States or any district court of appeal may be deemed active and operational, notwithstanding the court’s ruling, if agreed to by the Legislature pursuant to a joint resolution adopted by a 60 percent vote of each chamber within five years after the date that the ruling becomes final. Such a joint resolution shall take effect immediately upon passage.”

Gonzalez argues that if these provisions were enacted by voters, it “would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas. Equally as important, this would force the people to engage the Legislature in enacting rectifications to current laws that they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of re-election.”

“[T]he argument that the Legislature’s newly acquired authority would encroach upon the judiciary’s power actually turns reality upon its head, as, presently, it is the judiciary that is improperly encroaching upon the people and their legislatures, and it is that encroachment that this amendment is designed to correct.”

Gonzalez filed HJR 121 on December 27.

[Revised: 11-07-2017]