At Liberty Law Blog, John McGinnis comments on the proposed constitutional amendment being discussed by the Senate: Seizing the Opportunity to Revisit the Republic’s First Principles and The Silver Lining of a Very Bad Proposed Amendment. From the latter:
… [T]rying to pass an amendment implicitly accepts that the way to change the Constitution is to pass a constitutional amendment, not simply get the Supreme Court to say what you think the Constitution should have said. As Mike Rappaport and I have written, one of the great costs of judicial updating of the Constitution is that it has eroded the amendment process.
A debate about a constitutional amendment reminds us that We the People, not They the Justices, are responsible for constitutional change. Trying to pass a constitutional amendment also forces advocates of change to persuade their fellow citizens. It requires them to make deals with those who may not fully share their principles in order to get a consensus to pass an amendment. The higher politics of amendment is necessarily a politics of compromise, the opposite of winner-take-all, bare majoritarian politics that can be so destructive of social cohesion.
Posted at 6:38 AM