Jail4Judges: South Dakota Amendment E

by Ted Frank on October 27, 2006

Let’s be clear: one can take the position that there needs to be more judicial accountability and that too many judges overstep their bounds, and still think that Amendment E—the likely-unconstitutional South Dakota ballot proposal to end civil immunity for judges and jurors and establish an unanswerable “special grand jury” to oversee these things—is positively insane cuckoo bonkers. Opponents of the measure have set up a good website discussing the issues.

{ 6 comments }

1 great unknown 10.27.06 at 12:37 pm

Insane cuckoo bonkers I understand, but how can an amendment be unconstitutional?

[TF: Under the U.S. Constitution's Supremacy Clause, a state constitution cannot violate the federal constitution.]

2 Melvin H. 10.27.06 at 2:17 pm

I still wonder that after a Circuit Court (!!) judge in Denver declared Amendment 2 (no special rights for gays) unconstitutional after the 1992 (’94?) election passed it.

3 Deoxy 10.27.06 at 6:35 pm

There is utterly no way for an amendment to a constitution to be unconstitutional under THAT consistitution (state Cs are subordinate to the Federal one, though, as Ted noted), or the Constitution in question becoms unamendable.

That a judge has done that at least once is quite disturbing to me.

4 Jake 10.27.06 at 10:20 pm

Certainly the Supremacy Clause bars a state from amending its constitution in order to interfere with federal judges. But since when does the federal Constitution afford immunity to state court judges?

(I concede not having researched the matter on the spur of the moment. For all I know, the USSCT may have declared such a doctrine exists in our federal Constitution. The USSCT certainly has no trouble finding whatever it wants in that document.)

More to the point, the proposed SD constitutional amendment, albeit poorly drafted and rhetorically overheated, can be defended as an effort to establish some guidelines for impeaching bad judges — something the federal Constitution explicitly authorizes in the case of federal judges.

5 J.T. Wenting 10.28.06 at 6:14 am

Such ammendments are at the least troublesome as they open up a massive can of worms for judges making rulings that someone doesn’t agree with (which is bound to be all judges).
It opens up the possibillity of people sueing a judge for defamation if that judge passes a guilty verdict against them for example, and demand millions in compensation.

6 great unknown 10.29.06 at 11:17 am

J.T. Wenting:
What do you suggest as deterence/sanction for judges who are simply bad/incompetent/judicially unethical?
Would you be amenable to a procedure parallel to impeachment, where immunity could be retroactively stripped by a super-majority vote of the State Legislature?
I suspect this would have more of a salutory effect than simple impeachment.

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