North Dakota law has its quirks, some of which North Dakotans themselves would just as soon forget. But there's one clause in the state constitution that might just belong in the U.S. Constitution itself.
That would be Article VI, Section 4:
"A majority of the supreme court shall be necessary to ... pronounce a decision, provided that the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide."
The court has five members. So, this clause declares that in order to find a law unconstitutional, the North Dakota Supreme Court needs a supermajority, not just a majority, of justices.
At the federal level, a cleaner and more elegant solution to the "court wars" will not be found.
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As citizens know, there are three basic ways amend the U.S. Constitution. The first, a constitutional convention, hasn't been used in 223 years. The second, passing a formal amendment, typically requires Congressional supermajorities and three-fourths of the states.
The third way requires the assent of only five justices on the U.S. Supreme Court. That's where a supermajority requirement like North Dakota's could come in.
Of course, Supreme Court rulings on constitutional questions aren't "formal" amendments. But they're certainly "informal" amendments because until they're repealed via formal amendment or future court decision, they're the Law of the Land that even Congress must obey.
No wonder every Supreme Court vacancy is front page news for months, and every nominee finds his or her high-school teachers and childhood friends pumped for anecdotes. The Law of the Land is at stake -- especially these days, when neither Democrats nor Republicans can win lasting majorities in Congress and using the Supreme Court to slam the book shut on issues is tempting indeed.
it shouldn't be. The Constitution should be hard -- not easy -- to amend. Constitutional amendments -- including informal amendments -- should draw the same solid, unequivocal support that the original document inspires.
That's why there's something tainted about 5-4 majorities making constitutional law. If a decision is so utterly "right" that Congress and all 50 state legislatures must comply, then why did four justices disagree? And doesn't that heavy disagreement suggest that some near-majority of citizens also might disagree?
As New York Times columnist Ross Douthat put it, "settling so many vexing controversies with 5-to-4 votes -- effectively making Anthony Kennedy the nation's philosopher king -- is an awfully poor way to run a republic." Scott Greenfield, a New York attorney, put it this way: "Constitutionality was supposed to be for the long haul, not subject to change every time a new body dons the robe. The stability, reliability and continuity of the process demanded that there be clear, firm agreement amongst the chosen Nine about what the Constitution meant.
"Each 5-4 decision undermined our faith in the stability of the law."
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Enter North Dakota (and Nebraska, the only other state with such a clause), where the constitution's supermajority requirement cuts this Gordian knot.
The requirement has teeth: In 1994, the North Dakota Supreme Court declared the state's method for paying for K-12 education to be unconstitutional. But because the decision drew only three votes, it had no force, and the state law held.
At the same time, the requirement is not so onerous that the court's rulings never carry the day. The requirement simply ensures that before the court overturns any law, it must prove that law's "unconstitutionality" in a clear and persuasive way.
America and its own Supreme Court would profit from this change. Requiring 6-3 or even 7-2 majorities to settle constitutional questions would lift the court above politics. Such majorities couldn't be assembled in a presidential term or two. It would be the work of decades, crossing administrations and ensuring that court rulings carried broad support.
While 5-4 decisions serve interest groups, stronger majorities -- like formal amendments -- serve the republic. Weary Republicans and Democrats should weigh the change. It's a sensible call for a lasting truce in the culture war.
