Posted on 05/17/2005 8:50:45 PM PDT by CHARLITE
The contentious debate over judicial confirmations is often portrayed as a referendum on the notion of a "living Constitution." Conservatives like U.S. Supreme Court Justice Antonin Scalia believe that judges should adhere to the original text of the Constitution as expressed in the meaning of the words and their understanding at the time the Constitution was ratified. Liberals respond that the Constitution must be adapted to reflect changes in society's values and attitudes. However, these viewpoints are not, in fact, mutually exclusive.
In truth, no one seriously believes the Constitution is "dead." America's founding fathers provided a procedure for amending it, recognizing that the Constitution must change to some extent over time.
The controversy that now embroils our judiciary is a result of judges effectively amending the Constitution to create new rights, like abortion and sodomy, while reading out of the Constitution rights specifically enumerated, such as the right to bear arms. Some might say these changes are positive and reflect the evolution of public opinion, but if they had been made through the formal amendment process rather than by judges, a judge's political views would be irrelevant and judicial selection would be a non-controversial task of finding the best lawyers to faithfully interpret the Constitution as if it were a contract.
For this reason, none other than America's leading critic of the "living Constitution" judicial philosophy recently announced he supports making the Constitution easier to formally amend. Speaking at the George H.W. Bush Presidential Library at Texas A&M University on May 5, Justice Scalia suggested that the one provision in the Constitution he would change is the amendment process.
Currently, two-thirds of each chamber of Congress must approve the same language, which then must be approved by three-quarters of state legislatures. Scalia noted that twelve states with only two percent of the population could block any amendment.
Did the founders err by making the Constitution too inflexible? Not necessarily. There were thirteen states at the time of the founding so only ten states would have been needed to amend the Constitution. Also, the populations of the colonies did not vary that much.
That the Constitution couldn't be much harder to amend is borne out by recent history. There have been only five amendments since 1934. The only amendment ratified since 1971 was a minor change to the procedure for approving congressional pay raises.
The Supreme Court has picked up the slack. The Court has most controversially amended the Constitution by adding new rights, such as to abortion and sodomy. The Court's death penalty jurisprudence perhaps most clearly demonstrates that judges are amending the Constitution. In the last several decades, the death penalty has been upheld, struck down completely, upheld again, and just last year struck down as it applies to minors. Of course, the text of the Constitution has remained the same over this period, but the Court in its Roper decision last year concluded that "evolving standards of decency" had changed, relying in part on international rulings.
Amending the Constitution to streamline the amendment process would combat judicial activism in several ways. First, it would obviate the perceived need for judges to update the Constitution. Much like water building up at dam, when a supermajority exists for changing a fundamental part of our social contract, the country could more easily turn to the formal amendment process rather than judicial lawmaking.
Indeed, making the Constitution easier to amend answers one of the most common critiques of originalism - that the Constitution shouldn't be a legal straightjacket in the face of changing times and needs.
Second, when judges alter the Constitution through activist decisions, the public would have effective recourse. An amendment could be passed clarifying, for example, that a new right created by the Court is not in fact conferred by the Constitution.
Of course, a supermajority requirement should be retained so that stability is preserved and the Constitution is not reduced to mere statutory law. A minor change would reduce the requirements to three-fifths of Congress and three-fifths of the state legislatures.
Better yet, just as state legislatures no longer select the Senate, they could be eliminated from the amendment process altogether. After a congressional supermajority approves an amendment, it could be submitted to the public for ratification in the next federal election. To address emergencies, if three-fourths of Congress approves an amendment, Congress could be empowered to call an immediate election at which three-fourths of voters would have to approve the emergency amendment.
Some degree of flexibility is desirable so long as it is the people are doing the flexing and the judges doing the interpreting. Ironically, the best way to preserve the integrity of the Constitution and restore the judiciary to its proper role is by making it easier to amend.
Mr. Levin is an attorney at Potts & Reilly L.L.P. in Austin, Tex., and a former law clerk to Judge Will Garwood on the U.S. Court of Appeals for the 5th Circuit.
bttt and bookmarked...
Sounds good. However, Mr.Levin overlooked several critical aspects. First off. Half of all voting age Americans aren't engaged in the politics of governing. They don't pay attention and they don't vote. Truth is, most Americans don't know a damn thing about what the US Constitution is all about.
Marc A. Levin is different from Men in Black author Mark R. Levin.
Confusing them is an easy mistake to make, especially considering that they both are brilliant, conservative attorneys. The key to me was noticing that Marc A. was a partner in a Texas law firm. Mark R. is of course a WABC host.
For crying out loud! It's the basis of our government, the very foundation of our liberty, not some freaking popularity contest!
In various Texas constitutions there has never been any limitation on the number of amendments proposed. By the end of 1950 the legislature had proposed 193 amendments, and 107 had been adopted by the voters. By the time of the Constitutional Convention of 1974, the legislature had submitted 343 amendments to the voters since 1876. Of this number, 219 had been approved. By the end of 1994, 521 amendments had been proposed, and 353 had been approved by Texas voters. The record number of amendments proposed in any one election year was twenty-five in 1987.
SPOTREP
Could not disagree more.
If the People of the several States desire more public input to the Amendment process, then use the OTHER method to gain the approval of the necessary three-fourths of the States, the submission of a proposed Amendment to STATE CONVENTIONS. This was done for the 21st Amendment (the repeal of Prohibition) in what was then record time, less than one year...
Most of the then 48 States of the Union adopted State Legislation (which is still on the books) for the methodology of the selection of delegates by the public to the State Conventions. It parallels the Electoral College in that the public has a State-wide election for delegates to the State Convention, who then vote at the (very short) convention to ratify (or deny) the Amendent. The advantage of this method is that (outside of Alaska and Hawaii) the 'popular' vote method would get around a recalcitrant State Legislature on those proposed 'social' Amendments to the Federal Constitution...
Leave the Amendment process alone or we will end up with a Constituional mess like the Constitution of the State of California...
dvwjr
A ping for our own Austinite, Marc Levin!
FReepers, this article is NOT by The Great One/F. Lee Levin, Mark (with a K) Levin. But the author of this article, Marc (with a C) Levin is well-known to us in Austin, he's one one the most tireless grassroots activists you've ever seen, definitely one of the good guys.
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