Toward a Constitutional “Monarchy”

As I happened across The Monarchist (via Occam’s Carbuncle*), I remembered that I hadn’t staked out a place for monarchism in my post, “Parsing Political Philosophy.” I had meant to do so, but had second thoughts.

The place for monarchism is found in what I call radical-right-minarchism (R-R-M),

where “radical” means favoring the restoration of the Constitution to its original meaning. What sets R-R-M apart from other types of [minarchists] is their understanding that it is no longer possible to slay or tame Leviathan through electoral politics-as-usual, that the Constitution itself must be reinvigorated. (There are more radical alternatives, a military coup and secession, neither of which has much chance of success, and both of which could backfire. [Randy] Barnetts’s and my proposals would not, if adopted in the way outlined in the third through fifth paragraphs of Barnett’s article.)

Monarchism would be consistent with my idea of a new constitution, which includes, among many things, an Article VIII, Conventions of the States, which opens with this:

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government established by this Constitution. Such conventions (hereinafter “Convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

Perhaps, instead of unreliable quadrennial conventions, we should have a constitutional “monarch,” to be called (more palatably) “Keeper of the Constitution.” The Keeper’s sole power and duty would be to veto unconstitutional acts of Congress, the executive branch (including “independent” regulatory agencies), and the Supreme Court — as and when such acts occur.

The Keeper, in other words, would be a fourth branch of the federal government — a sorely needed check on the other three branches, which have failed miserably to protect, preserve, and defend the Constitution.

The creation of a Keeper would do much the same thing as the establishment of quadrennial conventions: Push the federal government toward constitutional rectitude with the threat of embarrassing it by very publicly undoing its unconstitutional deeds.

The idea of adding a negatively omnipotent fourth branch raises several tough questions:

  • How should the Keeper be chosen?
  • How long should the Keeper be allowed to serve?
  • What if the Keeper vetoes an act that was in fact constitutional? In other words, who (or what) defends us against an errant or arrogant Keeper?

In answer, I conjure the following constitutional language, beginning with the duties and powers of the Keeper:

1. a. The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies. The term “making law” includes — but is not limited to — a legislative, executive, or judicial interpretation of an existing law or laws. Covered acts of the judicial branch include — but are not limited to — denials of appeals or writs of certiorari. The Keeper’s purview does not extend to declarations of war; statutes, appropriations, regulations, or orders pertaining directly to the armed forces and intelligence services of the United States; or the employment of the armed forces and intelligence services of the United States. Nor does the Keeper’s purview extend to appointments made by or with the consent of the legislative, executive, or judicial branches.

1. b. The Keeper may nullify any act that lies within his purview, as defined in section 1.a, provided that the act occurred no more than one year before the date on which he nullifies it. The Keeper shall signify each nullification by informing the speaker of the House of Representatives, president pro-tempore of the Senate, president of the United States, and chief justice of the Supreme Court of the United States of his decision and the reason(s) therefor. The Keeper shall, at the same time, issue a public notice of his decision and the reason(s) therefor. The affected branch(es) of government shall, in each case, act promptly to implement the Keeper’s decision. Each implementing act shall be subject to review, as specified in sub-section 1.a.

As for choosing the Keeper:

2. a. The speaker of the House of Representatives and president of the United States, acting jointly, shall nominate a Keeper of the Constitution to the Supreme Court of the United States. The Supreme Court shall vote on a nominee no later than thirty days after receiving notice of a nomination. A nominee shall become Keeper upon the approval by three-fourths of the then-sitting justices of the Supreme Court.

2.b. If a nominee is rejected by the Supreme Court, the speaker and president, acting jointly, shall nominate a different person as Keeper, and shall send this second nomination to the House of Representatives and Senate. The House of Representatives and Senate shall, within thirty days of receiving notice of the nomination, meet as a single body to vote on the nominee. The nominee shall become Keeper upon approval by two-thirds of the total number of Representatives and Senators then present and voting.

2.c. If a nominee is rejected by both the Supreme Court and combined membership of the House of Representatives and Senate, the speaker and president, acting jointly, shall nominate a different person as Keeper, and shall send this third nomination to the Senate. The Senate shall, within thirty days of receiving notice of the nomination, meet to vote on the nominee. The nominee shall become Keeper upon approval by a majority of Senators then present and voting.

2.d. If the Keeper shall resign, die in office, or become unable to hold office because of a physical or mental condition attested to in writing by a unanimous panel of three doctors of medicine appointed jointly by the speaker of the House of Representatives, the president pro-tempore of the Senate, the president of the United States, and three-fourths of the then-sitting justices of the Supreme Court, a successor shall be appointed in accordance with the preceding sub-sections of this section 2.

The progressively easier method of choosing the Keeper provides an incentive for the Supreme Court to confirm the first nominee, rather than let the choice fall to the legislative branch. The provision for a third nomination is designed to ensure that the office won’t stand vacant.

I next address the term of office and related ways of keeping the Keeper “honest”:

3. a. The Keeper shall hold office during good behavior for a term of three years. The same person may not hold the office of Keeper more than once.

3.b. The Keeper may be removed from office only as follows: The speaker of the House of Representatives and president of the United States shall jointly apply to the Supreme Court of the United States for removal of the Keeper, specifying the instance(s) of official misfeasance or malfeasance that prompted their application. The Supreme Court, upon the receipt of such an application, and with due deliberation, shall vote on its merits. If  three-fourths of the then-sitting justices of the Supreme Court approve the application, the Keeper shall thereupon forfeit his office; otherwise, the Keeper then in office shall retain his position until a proper application for his removal is approved by three fourths of the then-sitting justices of the Supreme Court, or his term of office expires.

3.c. Upon removal of the Keeper from office by the foregoing procedure, a new Keeper shall be appointed, in accordance with the procedures of sub-sections 2.a, 2.b, and 2.c. Upon the appointment of a new Keeper, he shall enter upon a three-year term of office, which he may hold during good behavior.

Finally, some “housekeeping” details:

4. The Keeper shall be paid a salary of $1 per annum, but may be reimbursed for reasonable, personal expenses related to the execution of his duties. Congress shall appropriate monies for the reimbursement of the Keeper’s reasonable, personal expenses; for the reasonable compensation of the Keeper’s staff; and for the procurement, operation, and maintenance of  those facilities, equipment, and services that the Keeper and his staff may require for the execution of the Keeper’s responsibilities. The total cost of the foregoing shall not exceed $100 million per annum, which amount shall increase on the anniversary of the date of the adoption of this amendment by the same percentage as the most recent increase (if any) in cost-of-living adjustments to the pensions of veterans of the armed forces.

That’s my idea of a constitutional “monarchy” — one with real but limited power. Imagine the kind of person it would take to gain acceptance (or banishment) by three-fourths of the sitting justices of the Supreme Court (i.e., by seven of the nine). Even at the worst of times, constitutionally, I would expect there to be three or four justices on hand to ensure against the appointment of a pushover for the “living Constitution” —  which is not the Framer’s Constitution.

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* Now defunct and sorely missed.