CHANGING THE CONSTITUTION

NRO - The Corner ^ | 3/1/04 | Jonah Goldberg

[swilhelm73]

I'm still ambivalent about the FMA, but I'm confused by one of the main arguments of its opponents. I keep hearing that it's terrible to "change" or "tinker" with the Constitution. I'm sympathetic, but the gist of these arguments makes it sound like the Constitution currently has a fixed meaning. I wish! In fact, the folks fretting over changing the Constitution are largely -- though not entirely -- the same people who celebrate the pernicious doctrine of a "living Constitution." There are conservative opponents of the FMA who are consistent in their opposition to both an amendment judicial activism.

Which brings me to my confusion.

What I don't understand is why it's a great thing for unaccountable judges to change the meaning of the Constitution without a public debate while it is some form of tyranny for the House, Senate and fifty states to debate the issue over the course of months or years under the glaring spotlight of the media.

Before you answer that an amendment is more permanent, let me pre-emptively say: Not so fast. Amendments can be, and have been, repealed or superceded. Meanwhile, I'm hardly convinced that decades of activist jurisprudence could be rolled back -- and I'm certainly not persuaded that it could be done more quickly than the repeal of a Constitutional amendment. For example, tell me exactly what could be done under our regime to reverse the Supreme Court's banning of sodomy laws under Lawrence. I'm against sodomy laws, but I don't think they're necessarily unconstitutional. In effect, the Supreme Court amended the constitution just last year and the pro-gay marriage folks cheered.

Of course, there are other arguments against an FMA, but particularly since so many advocates of gay marriage openly celebrated the flagrantly illegal weddings in San Francisco and elsewhere as well as the flagrantly activist re-writing (i.e. "tinkering" "changing" etc) of the Mass. State constitution, it's increasingly difficult to take their arguments as good faith efforts. Indeed, my guess is if there was hope it passing we'd be hearing how we need an FMA to require all states to recognize gay marriages, the sanctity of the Constitution notwithstanding.

[RightthinkinAmerican]

How about we just start locking up activist judges who make their own laws? If the current law was enforced, there would be no gay marriages taking place. It's anarchy, and I don't think the anarchists really want it as bad as they think. It would be very ugly for them, at least in ny little corner of the midwest.

[cripplecreek]

Activist judges are the real problem here.

[DMZFrank]

Impeachment, nullification, interposition, and the use of Article III, Sec. 2 of the Constitution all need to be considered.

The marriage amendment should not be necessary. These actions by SF's mayor and the Massachutsetts judiciary are lawless and unconstitutional. We simply cannot amend the constitution every time the left decides to disregard it. We need to hold these officials accountable through impeachment, recall, nullification, interposition and arrest where necessary.

I am so seek of this endless deference to judicial tyranny.

When oh when will some elected executive officer in some state or federal capacity, in fulfilling his constitutional duty to honestly interpet the constitution (federal or state) just disregard the unconstitutional rulings of any court and dare the legislature to impeach him for it? When will some legislature impeach just ONE judge for an unconstitutional ruling?

To say that the courts have the final word on the constitutionality of a law NO MATTER WHAT THEY RULE is to say that the system of checks and balances envisioned by the founders does not exist any more.

Alan Keyes gave the best summation of this issue that I've heard yet. He said that every branch of government has a duty to honestly interpret the constitution. If the president honestly feels the courts make an unconstitutional and lawless ruling, then the president should disregard that ruling and refuse to enforce the provisions that he felt were blatantly unconstitutional. If the Congress felt the president was wrong in this decision, then it was their duty to impeach him for it. If the electorate felt that the Congress was wrong for impeaching the president or the failure to impeach him, they can remove them at the next election, as well as the president for any presidential actions that they considered wrongful.

Lest anyone consider this formula has a recipe for chaos, then I submit to you there is no chaos worse than an unchecked oligarchic Judiciary. We are not living under the rule of law when judges make law up to suit their whims has they engage in objective based adjudication.

[GraniteStateConservative]

Exactly. We're pretending like this is a one-time event. Activist courts have dozens and dozens of unconstitutional judgments under their belts. We need to put an end to the policy of ignoring the Constitution first and the rest will be taken care of. Impeach and remove!

[squarebarb]

Somewhere else somebody posted an article on a constitutional amendment to rein in the judiciary, limit SCOTUS to 10 years, judges electable...I* think. It sounded great to me. I have finally decided that the FMA is indeed a bad idea, that the energy and work should go into the above 'limit the judiciary' amendment.

[TeleStraightShooter]

I'm hardly convinced that decades of activist jurisprudence could be rolled back -- and I'm certainly not persuaded that it could be done more quickly than the repeal of a Constitutional amendment.

It's called the Exceptions Clause in the USC, Article 3, Section 2, Clause 2.

To summarize, the Courts draw their power from Congress;
all congress has to do is remove an issue {such as who can marry} from federal -or- state court jurisdiction.
All it takes is passing an bill into law.

[therut]

Liberals lie and conservatives stick to their ideology. Liberals will use the constitution anyway they want if it is for their end goal.. Alan Dersowitz was on Wolf Blitzer yesterday lamenting amending the constitution in a way that would restrict rights. But he is a guy who has come out and admitted the 2nd amendment does protect an individual right and then states that the constitution needs to be ammended to change that fact!!!!

[tpaine]

I'm still ambivalent about the FMA, but I'm confused by one of the main arguments of its opponents. I keep hearing that it's terrible to "change" or "tinker" with the Constitution. I'm sympathetic, but the gist of these arguments makes it sound like the Constitution currently has a fixed meaning.

It's basic principles are indeed 'fixed', in the sense that we can't amend away our inalienable rights to life, liberty & property, without voiding our constitutional contract..

I wish! In fact, the folks fretting over changing the Constitution are largely -- though not entirely -- the same people who celebrate the pernicious doctrine of a "living Constitution." There are conservative opponents of the FMA who are consistent in their opposition to both an amendment judicial activism. Which brings me to my confusion.
What I don't understand is why it's a great thing for unaccountable judges to change the meaning of the Constitution without a public debate while it is some form of tyranny for the House, Senate and fifty states to debate the issue over the course of months or years under the glaring spotlight of the media.

Courts are only deciding individual cases, -- thus they aren't really changing the meaning of the constitution.. That's hype from radicals that REALLY want to change the basics [as above], -- imo..

Before you answer that an amendment is more permanent, let me pre-emptively say: Not so fast. Amendments can be, and have been, repealed or superceded. Meanwhile, I'm hardly convinced that decades of activist jurisprudence could be rolled back -- and I'm certainly not persuaded that it could be done more quickly than the repeal of a Constitutional amendment. For example, tell me exactly what could be done under our regime to reverse the Supreme Court's banning of sodomy laws under Lawrence.

Lawrence upheld our basic right to privacy. Why do you want to 'reverse' such a right?

I'm against sodomy laws, but I don't think they're necessarily unconstitutional.

Public acts of sodomy can be regulated, and are..
Private, consensual sexual acts between adults are none of governments business, as long as criminal laws are not violated.

In effect, the Supreme Court amended the constitution just last year and the pro-gay marriage folks cheered.

Again, you are confusing hype for reality. If our governments ended all marriage related welfare, insurance, & tax benefits, gays wouldn't clamor to get "married".. End of problem.

[tpaine]

Alan Keyes gave the best summation of this issue that I've heard yet.
He said that every branch of government has a duty to honestly interpret the constitution.
If the president honestly feels the courts make an unconstitutional and lawless ruling, then the president should disregard that ruling and refuse to enforce the provisions that he felt were blatantly unconstitutional.
If the Congress felt the president was wrong in this decision, then it was their duty to impeach him for it. If the electorate felt that the Congress was wrong for impeaching the president or the failure to impeach him, they can remove them at the next election, as well as the president for any presidential actions that they considered wrongful.

-Frank-


______________________________________


Well written summary of Keyes 'checks & balances' position, that needs repeating..


I disagree with many of Keyes other ideas, but on the above issue he is dead on..

[Jim_Curtis]

The left has figured out that they can remake the United States to their desires by appointing judges who will ignore the constitution.

The genie is out of the bottle and liberals aren't gonna change their ways, their desires are what motivates them.

It is asinine not to use a weapon to defend yourself on the basis of "gee, I've always avoided using that weapon before".

When there is nothing left of the US that you used to know will you soothe yourself with proud reflections of "well, at least we didn't take the extreme measure of taking the framers up on their inclusion of an amendment process to save ourselves".

We need to fight fire with fire. We need to realize that these are different times that require meaningful action.

The Fathers foresaw plenty even if only in the abstract, they couldn't have imagined all these judges who are hostile to the constitution. I even expect that they would have felt the 2nd amendment was enough of a deterent to judicial tyranny and would be shaking their heads and covering their faces if they could see what we have allowed this country to become.

It's time to amend with a vengeance.

[tpaine]

We need to fight fire with fire. We need to realize that these are different times that require meaningful action.

You want an amendment that declares our government has the power to dictate the 'rules' about marriage?

The Fathers foresaw plenty even if only in the abstract, they couldn't have imagined all these judges who are hostile to the constitution.

But they did.. They wrote in checks & balances on the judicial system that aren't being used for political reasons.. -- You want to change that balance by amendment? - I see a dangerous precedent.

I even expect that they would have felt the 2nd amendment was enough of a deterrent to judicial tyranny and would be shaking their heads and covering their faces if they could see what we have allowed this country to become.

A majority in this country want more gun control.. Are you willing to see them amend our constitution to reach that goal?

It's time to amend with a vengeance.

Such 'vengeance' can backfire, imo.

[Jim_Curtis]

We need to fight fire with fire. We need to realize that these are different times that require meaningful action.
///
You want an amendment that declares our government has the power to dictate the 'rules' about marriage?
---
Sure...or do you feel that the people thru their elected officials should have no say in the matter? Polygamy? Incestual marriage?

***

The Fathers foresaw plenty even if only in the abstract, they couldn't have imagined all these judges who are hostile to the constitution.
///
But they did.. They wrote in checks & balances on the judicial system that aren't being used for political reasons.. -- You want to change that balance by amendment? - I see a dangerous precedent.
----
Allowing juducial activists to ignore laws because they have the power to trump law and redefine society is the dangerous thing. Where is the "check & balance" in San Francisco where the law is being ignored today? I see no shame in using constitutional law ( the amendment process ) to right the wrongs.

***

I even expect that they would have felt the 2nd amendment was enough of a deterrent to judicial tyranny and would be shaking their heads and covering their faces if they could see what we have allowed this country to become.
///
A majority in this country want more gun control.. Are you willing to see them amend our constitution to reach that goal?
---
They are already banning the hell out of guns without amendments ( or repealing of the 2nd ) but that aside, there is no constitutional right for some guy to marry his father. Judges have forced the need to amend.
***
It's time to amend with a vengeance.
///
Such 'vengeance' can backfire, imo.
---
If the car is on fire, a backfire is of little concern.

[RockyMtnMan]

The only reason congress says we need an Amendment is because the supremes support gay marriage. Otherwise they could just pass another "Act" that violates the constitution as congress usually does (guns,drugs,etc).

[gcruse]

The FMA is pabulum to keep the issue from blowing up before the election. No one is his right mind believe three quarters of the states will line up behind an amendment when 40% minimum of the voters are opposed to it.

[jwalsh07]

Oh ye of little faith.

[gcruse]

You're right. I overshot it trying to be kind. The FMA will never get out of Senate committee.

[jwalsh07]

LOL, you may be right, sad to say.

[GATOR NAVY]

If the president honestly feels the courts make an unconstitutional and lawless ruling, then the president should disregard that ruling and refuse to enforce the provisions that he felt were blatantly unconstitutional. If the Congress felt the president was wrong in this decision, then it was their duty to impeach him for it. If the electorate felt that the Congress was wrong for impeaching the president or the failure to impeach him, they can remove them at the next election, as well as the president for any presidential actions that they considered wrongful.

It's missing one other course of action. If Congress agrees with the President that a court's ruling is unconsititutional, then it's their duty to impeach to the judges responsible.

[LiteKeeper]

INTREP - HYPOCRITES CAN'T HAVE IT BOTH WAYS!