"But Darren," some claim, "the Article V hurdle is too high! Things have changed, times have changed, and we need an easier way to make things right!" My answer to that is to change the Constitution to make it easier to change the Constitution, not just ignore Article V because it's (intentionally) difficult.
Of course, if you're an ideologue California Supreme Court justice in arm's reach of the US Supreme Court, that pesky Constitution isn't something you have to worry about for long:
Asked about the doctrine of enumerated powers and whether it was possible to reconcile the limited view of federal power articulated in The Federalist with modern Supreme Court doctrines, Liu demurred. “If I had an answer to that I’d have written a book,” he quipped, observing the question of federal power is an enduring constitutional and political debate. Despite the language of enumeration, he noted, “there are certain economic realities that have shifted our understanding of these words over time,” such as the increasingly integrated economy. Nonetheless he noted that it is a hotly debated proposition whether courts should rely more on founding era understandings or contemporary realities.That's fancy talk for "I'll do what I think is right, the Constitution be damned."
You want a poster child for liberals? There you have one.
While I don't necessarily agree with the Justices approach, your argument that the only way to change the Constitution is through Article 5 is not valid. Every law, court case, and executive agree creates different changes to the Constitution. And he's right about the "limited Federal power" as stated in the Federalist papers because it wasn't necessarily calling for limited Federal power. In fact Alexander Hamilton was a strong proponent of federal power.
ReplyDelete"The Constitution be damned" is hardly his argument. The debate has raged for centuries about whether or not you have an open interpretation of the Constitution. That's not disrespecting the document, that's trying to meld an 18th Century document into the 21'st Century.
It's that exact argument--the Constitution is too old to apply today--that I reject out of hand.
ReplyDeleteNo one said it was too old. The argument is interpretation, not validity.
ReplyDeleteDarren, you're playing "channeling the framers”– as in “Oh Framers, would you think the thermal imaging of a house to detect increased heat generated by marijuana cultivation is a ‘search’?”
ReplyDeleteAnd when that case is decided, perhaps not with the outcome you want, we have a *new* foundation from which to make our next decision. And so on and so on. Pretty soon a couple of hundred years go by and it's not 1789 anymore.
I've said before. If Article V is your preferred method. Why don't you give it a try and right all the wrongs. Brown, Sullivan, Griswold. Give up your *privacy*.
Do you think you could pass the Article V requirements and reverse any of those *injustices*. How's that Article V working for you?
Just coincidentally stumbled across this, apropos of our discussion:
ReplyDeleteREYNOLDS: I call this the Raj Koothrappali approach to Constitutional Law. I don’t know if you watch Big Bang Theory, but Raj is Indian of course, and he’s lecturing his sister from India on Hindu rules about modesty and sexual proprietary, and she just looks at him and says, “You’re talking to me about this, as you’re eating a cheeseburger!” He just looks at her and says, “Some of it makes sense; some of it’s crazy – whatta do?!” And that’s basically the Seidman approach to the Constitution, right? The parts he likes make sense, and the others are crazy – whatta do?
Here’s the problem with public officials — because that’s really [Seidman’s] audience — deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess.
So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.
http://pjmedia.com/eddriscoll/2013/02/24/the-raj-koothrappali-approach/
Addressing Section 8:
ReplyDeleteThe most egregious recent rulings of the Supreme Court, Kelo and Obamacare, don't need Article V to correct, as they're completely and totally wrong and will someday join Dred Scott and Plessy and Loving and so many others in the dung heap of history. Actually applying the clear and obvious meaning of the Constitution would *require* different rulings in Kelo and Obamacare; they were obviously political rulings, not constitutional ones.
I goofed. I didn't mean to put Loving on that list, replace it with Wickard v. Filburn.
ReplyDeleteCoach Brown . . . Supreme Court decisions do NOT change the Constitution, they interpret it. Sometimes, the supremes get that interpretation very clearly wrong, and sometimes debatably wrong ... but they never change the framework. For example, Roe v. Wade is very debatably wrong... whether you are pro choice or not. It sits on the tenuous foundation of a right to privacy between doctor and patient . . . but it did not change the Constitution. States are still free to try to limit that right, and many do. A constitutional amendment that said "Abortion is always legal until such and such a date in the pregnancy" would eliminate that, and remove the issue from the purview of the court.
ReplyDeleteSorry but you are incorrect (and I would argue on both accounts). Interpretation of law is an informal change of the Constitution, whether you think it is wrong or not. Some elements of the Constitution are pretty solid (terms of the President) while others are much more vague (First Amendment). Every law, every case changes the meaning of the document. This argument about "framework" is legitimate but has been going on since the document was created, and rightfully so. That's what makes the country so exceptional. But to say that laws and cases don't change the meaning of the Constitution is ignoring history in a fairly blatant manner.
ReplyDeleteAs for the Roe v Wade issue, I'm not even going to get into the government getting into the business of a woman's body, or the issue of state interest vs. good medicine.
I'm not wrong. You even qualified your answer: changing the 'meaning of the constitution' vs. changing the constitution.The first amendment changed the constitution to allow free speech. The famous decision that you can't yell fire in a crowded theater altered the meaning, but it did NOT alter the Constitution. Part of the Constitution allowed the Supreme, and lower courts to interpret the constitution. Even if you think they did it incorrectly, they still didn't change the document itself. Every new challenge is interpreted on its own, as per the constitution.
ReplyDelete