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To: William McKinley
Jonah's always a very bumpy read, but he does make two excellent points that merit consideration and discussion.

The fact is that the Court rarely reflects popular opinion so much as elite opinion. And it almost never reflects popular opinion when the pro-"living Constitution" crowd calls the justices "heroic." For example, the Court recently upheld racial preferences even though a large majority of Americans consistently oppose them. The Court based its ruling not on what Americans want but on what it thinks Americans need: Diversity is good for whites; preferences are good for blacks; it's all-good for America.

And, once you realize that the Court is not changing with the generations so much as changing with whatever is fashionable in elite society in Washington and New York, it becomes clear that the people who celebrate the idea of a "living Constitution" don't really want the Court to follow the people, they want it to lead or, if need be, command the people. As Judge Robert Bork noted in The Tempting of America"The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically."

...

Second, it reveals why amending the Constitution is so much less pernicious than redefining the existing words. Amending the Constitution is hard because the Founders rightly wanted it that way. Making it a slow and difficult process — often taking years or even generations — not only guaranteed that only the most important changes would be considered as binding precommitments for future generations. It ensured that any proposed changes would be debated and argued over by just about everyone over a sufficient period of time so as to make certain that everyone thought about the lasting repercussions for generations to come. In other words, the Founders designed the amendment process to make us all wear the hat of a Founding Father. But when the Court simply redefines the existing words to mean whatever the majority wants, the Constitution is not longer about precommitting future generations to agreed-upon rules, it's about rank power in the here and now. You may not weep over the fact that this nullifies our ancestors efforts to set the rules of the game. But I hope it bothers you that the rules of the game are still being changed and you have almost no say in what kind of Constitution your descendents will live under.

If the amendment process were more active, we would have a truly "living" Constitution. But apparently neither elites nor the public really want that. A Constitution too frequently amended doesn't inspire awe. It starts to look like state constitutions, which can have hundreds of amendments and even be replaced at crucial intervals. We tend to want an abstract, general Constitution that offers vague guidelines and absolute rights, and inspires reverence by its distance and untouchability. Thus, we leave it up to the courts to fill in the details and get judge-made laws.

We could probably get the problem under control, if we made more use of the amendment process. It might not only right the wrongs the Court makes, but dissuade future justices from making more usurpations. But the amendment process is so daunting, and the pressure not to "clutter" the Constitution with more practical amendments usually makes the Court's critics back down.

16 posted on 07/08/2003 11:18:05 AM PDT by x
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To: x
We could probably get the problem under control, if we made more use of the amendment process

I'm in favor of a human life amendment; it would be proportionate to the 2nd. But given the present predisposition to short-cuts to the court by both citizen and statesman it may be that only frivolous amendments have a chance. 1776 was run by more mature minds informed by a decent and humane respect for the past.

18 posted on 07/08/2003 11:32:46 AM PDT by cornelis
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