Reforming the US Constitution, Part 3: The Supreme Court

The Constitution created three separate branches of government– the Legislative, the Executive, and the Judicial. Each of these branches has disjoint realms of authority, the idea being that concentration of power in separate branches of government should have the effect of protecting American citizens from abuse by any one group.

In the 1803 case Marbury v Madison the Supreme Court established the principle of judicial review, meaning that the courts have the power to declare any act of Congress unconstitutional and therefore void. This power is not explicitly identified in the Constitution, but it is one that certainly makes sense. Were the Congress to, for example, pass a law that retroactively makes tax evasion a capital offense that would be a clear violation of the exclusion of Ex Post Facto laws stipulated in Article I Section 9 of the Constitution. Congress should not be allowed to make laws that plainly violate the Constitution, and the Judicial branch is the only entity that could conceivably determine which acts of Congress accord with the Constitution and which do not.

The current process for testing the constitutionality of a given piece of legislation is to wait for it to become law, and then to wait for an affected citizen to bring a case of visible harm to the courts, and for that case to percolate up through the entire court system to the Supreme Court. This process can– and often does– take years. Wouldn’t it be more efficient if the Supreme Court were consulted at the time that a piece of legislation is considered? What if the Congress were to submit a piece of proposed legislation to the Supreme Court for evaluation before a final vote? The Supreme Court could then catch anything that might run afoul of the Constitution before the law is ever passed. Such a process would reduce the burden on the courts at all levels, and it would very likely reduce the chance that Congress passes a law that is truly at odds with the Constitution.

Modern acts of Congress are very lengthy. It is not unusual for a piece of legislation to run to many thousands of pages. Can the Supreme Court realistically peruse such a piece of legislation and provide meaningful feedback expeditiously? No, it is not. But the Supreme Court could fund the development of Artificially Intelligent (AI) software that can read acts of legislation to identify points of conflict with the Constitution and to recommend changes. Such software could be of tremendous value– not only to the Congress of the United States, but also to the governments of every state. Each state maintains its own constitution, its own system of laws, its own judiciary, and its own congress. Each state has the same problem that the federal government has of needing to determine which laws are compatible with its constitution and which are not. AI software could help to identify such conflicts before they become law. It could also identify redundancies, conflicts with existing law, and undefined terms. Catching such issues before proposed legislation becomes law would certainly be more efficient than the lengthy and tedious process we currently have in place– and it would very likely result in more uniform legislation.

AI software can be a powerful tool. It should never replace the need for humans to evaluate legislation for its propriety, its moral import, its appropriateness to the conditions of society, or its applicability to an individual claimant’s case. But when used as a tool to help the authors and interpreters of legislation identify possible issues and conflicts, it can enable humans to achieve a higher level of perfection in the crafting of law.

Written 2021-01-01

Copyright (c) 2021 by David S. Moore