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To: ibi_libertas
Once again I have to ask people to please reconsider the can-o-worms being opened by proposing a constitutional amendment to redress a specific grievance. For those who are familiar with my arguments, I'm sorry to keep boring you, but it needs to be done. In particular:

1. Amendments are easier to pass than it may seem at first. The first requirement is a 2/3 majority in both houses of Congress. That happens all the time. Just look at the margins by which the PATRIOT Act was passed: All but a small handful of votes in the lower house, and all but one in the Senate. And that's not unusual at all. The next requirement is the approval of the legislatures of 3/4 of the states. That's not difficult either. The (informally) proposed flag-burning amendment was brought before Congress by petitions from 49 state legislatures (including Massachusetts!). The only restraint on rampant amendments to the Constitution is that it's still considered somewhat taboo to tamper with our most basic document. Every time an amendment is proposed for the redress of a specific grievance, that taboo is eroded further, and the results can be unpredictable and catastrophic.

2. A constitutional amendment, far from rebuking activist judges, will actually encourage them further. By amending the Constitution, we're tacitly admitting (however much we protest to the contrary) that they had the correct interpretation of the Constitution prior to the amendment. By default, it will give them carte-blanche to do whatever else isn't specifically prohibited by special amendment. Their attitude will be that if we don't like their ruling, we can always amend the Constitution. Even under a dangerously expedited process, we won't be able to amend it faster than they can pump out bad rulings.

As for alternative remedies to the situation, we have:

1. Impeachment. As others have pointed out already, this would be very difficult politically. But the more we concentrate our efforts to that end, the more attainable it will be.

2. Restriction of appellate power. Congress has this power over the federal judiciary, as part of its ordinary powers. It should definitely make use of it. The appellate power is the stick by which the federal judiciary pushes states around.

3. And finally, states should just ignore unconstitutional rulings from federal courts. If Georgia is told that it must grant marriage benefits to a same-sex couple who were "married" in Massachusetts, Georgia should say to the ordering court, "After careful mature study of your decision, we've arrived at the conclusion that it's not worth a pile of mule dung, but you're welcome to try to enforce it here anyway. Regards, ".

11 posted on 02/05/2004 4:36:20 PM PST by inquest (The only problem with partisanship is that it leads to bipartisanship)
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To: inquest
I too am a little afraid of what will happen if we start amending the constitution. After all, the patriot act reforms could have been proposed as consitutional amendments in the wake of 9-11 and we would have been stuck with them for a very long time.

The problem with impeachment is it's sort of like bug spray. It kills the critters, but not before they have a chance to bite you.

>2. Restriction of appellate power. Congress has this power
>over the federal judiciary, as part of its ordinary powers.
>It should definitely make use of it. The appellate power is
>the stick by which the federal judiciary pushes states
>around.

Could you elaborate on this idea a little bit more?

>3. And finally, states should just ignore unconstitutional
>rulings from federal courts. If Georgia is told that it
>must grant marriage benefits to a same-sex couple who were
>"married" in Massachusetts, Georgia should say to the
>ordering court, "After careful mature study of your
>decision, we've arrived at the conclusion that it's not
>worth a pile of mule dung, but you're welcome to try to
>enforce it here anyway. Regards, ".

This will result in a patchwork where blue states will comply and red ones won't...I don't think that's what we're going for.

I suppose there's another alternative - try and talk Osama into nuking Massachusettes...
14 posted on 02/05/2004 5:45:26 PM PST by applemac_g4
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To: inquest
You make some good points. This talk of an amendment banning gay marriages is political pandering at its best. If they were serious about stopping activist judges, they'd block them from the bench and impeach the ones already there, not go around cleaning up the messes they make by amending the Constitution after the fact.
16 posted on 02/05/2004 6:25:27 PM PST by ForOurFuture
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