Tuesday, February 17, 2004

The Constitutional Literalism Amendment

Old Post: This is a continuation of the discussion below.

Dave of Doc Rampage has published a more thorough explanation of what an amendment to enforce constitutional literalism would look like. Here is the key paragraph of his response:
This problem, obviously, is not one that you can fix with a procedural change. I think the only chance we have of effecting the issue in a positive way is by social change. And the kind of constitutional amendment I propose is intended to bring about that change. What I have in mind is something that says (1) Each part of the constitution is to be interpreted according to its clear and literal meaning as it was understood at the time of writing. (2) Neither precedent, nor cultural norms, nor foreign courts, nor religious doctrine, nor science, nor any other influence may be used to modify the clear and literal meaning of the constitution. This means (2a) Rulings may not drift away from the meaning over time through precedent and (2b) The only way to change the constitution is by those processes set out in the constitution. (3) All three branches are equally responsible to uphold the constitution and to refuse to cooperate with any branch that seeks to violate it. And maybe something like (4) the citizens are responsible to refuse to vote for any elected official who has violated the constitution, even if they agreed with the results of the action. And just for safety, (5) The current state of precedent and interpretation of the constitution is not the baseline from which we start, we start with the original document.

While I think his idea has much to recommend it, there are some difficulties with it.

Political: Any proposed amendment will have to pass the Brown test. If people can look at this amendment and say that it would have prevented the Brown v. Board of Education ruling, it will not pass. That ruling is almost universally accepted as good and just and necessary, and any amendment for which someone can make a strong case that it would have prevented the Brown ruling will not have enough support to pass. Any amendment to rein in the judiciary will face this criticism, but I think some amendments will weather it easier than others. There are other rulings which have strong constituencies defending them (Roe v. Wade, for example), but that is the one which has the most universal appeal.

Judicial: The fifth provision will be problematic as it will immediately invalidate a great deal of not only judicial precedent but also federal legislation. It would take years to sort out the chaos. It may be possible to ameliorate this by setting the date it takes effect to occur several years after its approval. That will allow the courts and Congress some time to work out the details.

Interpretation: I think provision (1) is problematic as there is always some room for interpretation. Someone needs to decide what the intentions of the founders were, and not everyone who approved the constitution agreed with the Federalist Papers. If we insist on staying with their intentions, then someone has to decide what they were, and that person or group will have a great deal of power.

In all, while I think Dave's proposal is closer to the ideal than mine, mine offers more flexibility and a better chance of passing, where it can at least stop the tide of judicial tyranny, even if it won't fully roll it back.

Update: Oops. I meant "federal legislation," not "legislature." It's fixed now.

Update: Implementing "old post, new post" scheme here.

New post: I talk about Doc Rampage's response to this above.

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