Overruling the Supreme Court

Andy McCarthy made a post on the Corner today indicating, in part, that he would like to see the Constitution amended so that a supermajority of Congress can overrule the Supreme Court. I frequently see proposals for changes to the Constitution, but usually they're something to allow a faster slide into a progressivist state. This is different. I like McCarthy, but I can't assert that he wants this change for reasons other than to attempt to overturn decisions with which he disagrees, but I think it's a good position in the abstract.

There actually isn't anything in the Constitutional that allows the Courts to overrule Congress at all, but it seems to have been generally agreed, even at the time of the framing, that that was a natural power of the appellate judiciary (at least from what I've read on it). They didn't give Congress the power to overturn the Supreme Court ruling that something they did was unconstitutional because that would allow a supermajority of Congress to de facto amend the Constitution. Unfortunately the judiciary at some point (I think not before Dred Scott and not after Lochner) decided that they have the right to imagine requirements of the Constitution stemming from emanations from penumbras of the text that just happened to support policies they agreed with.

I'll note, I actually think it highly unlikely that this change would ever be used. The fact of the matter is that if the Supreme Court makes a boneheaded departure from the text of the Constitution they almost always do it on grounds popular enough that you couldn't get two thirds of the Congress to overturn them (I, in fact, can't think of an instance where they couldn't get a third of Congress). I'll also note that historically the Congress was the first branch to abandon the Constitution (We know that they had abandoned it to the popular temptation by 1854 when Pierce vetoed a very popular bill for a national program for the mentally ill). In spite of these negatives, and even though I fundamentally think Democracy can't avoid the servile temptation, I think reserving for the people's representatives some way to overturn the acts of an unelected oligarchy in the form of the Courts is better than giving the country over to them. I would love to see the act state that Congress can only do it if a super majority thinks the court's decision unconstitutional, but I don't flatter myself that they couldn't find some emanations from penumbras that suggest whatever they disagree with is unconstitutional.