25 May 2008
In McCain’s Court
It is odd for Jeffrey Toobin, in the May 26, 2008, New Yorker, to select as established law three controversial cases when defending the stare decisis conservatism of the Supreme Court. One of them was a majority opinion written by one of the avatars of using the judicial process to adapt the Constitution to changes in the zeitgeist—Douglas. The other two selected cases were decided when swing voters on the Court—O’Connor and Kennedy—sided with customary “legislators from the bench.”
No evidence is given, however, that the Constitution was ever meant to be interpreted by the Supreme Court in ways not intended by its original drafters and ratified by the confederating states. It is assumed to be settled law because in those three cases, as well as in others to be sure, a majority of Justices accepted it as one of their anointed powers.
The Constitution established a difficult procedure for amending its provisions. Its drafters intended to obviate frequent or easy modifications, and yet to allow for the correction of errors or “discovered faults”. This is highlighted in The Federalist Number 43. Changes in the social customs of the times, which led to the establishment of a right to privacy, a prohibition on juvenile death penalties, and a right to an abortion, must be counted as faults that could not have been anticipated, and are properly left to the amendment procedure provided in the Constitution.
If McCain’s Court would insist on reverting to the intention of the drafters of the Constitution, it would necessitate reformers of our system of government making the daunting effort to amend its articles of formation. Perhaps Senator Obama believes he can succeed in such an undertaking. (It might very well include an amendment to the Constitution that clearly authorized the third branch of government to adapt its articles to changing social circumstances, through decisions on controversial cases. Or it might outline a technologically modern method for amending the Constitution.)
In either case, a grass-roots campaign will be necessary in order to suit our laws to our radically changed social mores. Although our Constitution has served us well over the past two centuries, it no longer fulfills our needs without a more flexible means of amendment or specific authorization of modification by a panel of wise men. The latter solution is not likely to be accepted by the majority in a national referendum, and the Information Technology revolution has now made it unnecessary.
It is odd for Jeffrey Toobin, in the May 26, 2008, New Yorker, to select as established law three controversial cases when defending the stare decisis conservatism of the Supreme Court. One of them was a majority opinion written by one of the avatars of using the judicial process to adapt the Constitution to changes in the zeitgeist—Douglas. The other two selected cases were decided when swing voters on the Court—O’Connor and Kennedy—sided with customary “legislators from the bench.”
No evidence is given, however, that the Constitution was ever meant to be interpreted by the Supreme Court in ways not intended by its original drafters and ratified by the confederating states. It is assumed to be settled law because in those three cases, as well as in others to be sure, a majority of Justices accepted it as one of their anointed powers.
The Constitution established a difficult procedure for amending its provisions. Its drafters intended to obviate frequent or easy modifications, and yet to allow for the correction of errors or “discovered faults”. This is highlighted in The Federalist Number 43. Changes in the social customs of the times, which led to the establishment of a right to privacy, a prohibition on juvenile death penalties, and a right to an abortion, must be counted as faults that could not have been anticipated, and are properly left to the amendment procedure provided in the Constitution.
If McCain’s Court would insist on reverting to the intention of the drafters of the Constitution, it would necessitate reformers of our system of government making the daunting effort to amend its articles of formation. Perhaps Senator Obama believes he can succeed in such an undertaking. (It might very well include an amendment to the Constitution that clearly authorized the third branch of government to adapt its articles to changing social circumstances, through decisions on controversial cases. Or it might outline a technologically modern method for amending the Constitution.)
In either case, a grass-roots campaign will be necessary in order to suit our laws to our radically changed social mores. Although our Constitution has served us well over the past two centuries, it no longer fulfills our needs without a more flexible means of amendment or specific authorization of modification by a panel of wise men. The latter solution is not likely to be accepted by the majority in a national referendum, and the Information Technology revolution has now made it unnecessary.
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