FMA: Vikram Amar and Alan Brownstein

...It is generally recognized that federal constitutional law entrenches legal principles by taking them outside the normal scope of the political process. By this, we mean that requirements and prohibitions embodied in the U.S. Constitution and its interpretation are very difficult, if not impossible, to displace or even modify through conventional political channels. Indeed, one might reasonably say that nothing about the development or modification of constitutional law involves the conventional or normal operation of democratic politics.

Constitutional law develops in two ways. First, constitutional law evolves through judge-made interpretations of the Constitution in U.S. Supreme Court and lower court decisions. Concededly, there is a political dimension to judicial rulings (even constitutional decisions by courts can not be entirely isolated from the prevalent political culture of the United States). Yet judicial decisionmaking is not really political in the same sense that congressional lawmaking is political. And judicial decisionmaking is certainly not democratic, in that the will of the majority - at least as expressed through current statutes -- is often frustrated by what judges do.

Second, constitutional law evolves through the amendment process by which the text of the document is itself changed. Unlike judicial decisionmaking, this process is certainly political -- amending the Constitution is accomplished by a "campaign" and a voting process that has many similarities to other elections. The relationship between the amendment process and democracy is more complex, however. ...

Finally, whether the amendment process is political and/or democratic, it certainly cannot be said to be normal or conventional. To the contrary, the amendment process has been successfully invoked only sporadically. ...

Over the very long haul, of course, the meaning of even a precisely crafted constitutional amendment can sometimes be transformed by judicial interpretation. (Certainly, the current Court's interpretation of the Eleventh Amendment bears little resemblance to the language of the text.)

But we submit that doing so is a much more demanding and costly undertaking for the Court than is a re-evaluation of any meaning assigned to a contested constitutional provision by the Court itself in an earlier case. Put simply, it is much easier for the Court to second-guess its own judgment, than to second-guess the judgment explicitly embodied in a clear constitutional amendment. ...

Our suggestion here is simple enough: The Constitution ought not be amended to forestall acceptance of legal developments that are beginning to receive serious attention and consideration for the first time, and are starting to gain democratic traction in the polity. Rather, those kinds of developments should be allowed to be fully considered in democratic debate.

more
posted by Eve at 9:58 PM | link

0 Comments:

Post a Comment

<< Home