Should it be made easier to amend the constitution?

[Beet]

Yes- the more flexible the constitution is, the less need there is for judicial interpretation.

[nclib]

Given that the ridiculous flag "protection" amendment came so close to passing (and probably would have passed through the states if it got one more vote in the Senate), I would say it is very dangerous to make it easier to amend the Constitution.

[Beet]

Given that the ridiculous flag "protection" amendment came so close to passing (and probably would have passed through the states if it got one more vote in the Senate), I would say it is very dangerous to make it easier to amend the Constitution.

Yes, but a flag burning amendment would eliminate the procedural ambiguity over whether the first amendment does indeed ban this form of symbolic speech-- making it so that judges are not required to make a determination and put their institutional reputation on the line in doing so.

Amendments can always be repealed. Perhaps by having only 17 amendments in 217 years, congress and the states are putting too much pressure on the court system to interpret the law and not taking their duty to clarify the constitution seriously enough.

[Jacobtm]

The constitution is rather good as it is now, and people presently are no where near smart/responsible enough to make positive ammendments to it. It seems ridiculous to aid in the destruction of a great document simply to make it so courts aren't bothered by clarifying the law. Lightening the workload for judges is no reason to allow for irresponsible changes to the constitution.

[MaC]

no.  But we should punish those who are elected and don't follow it.

[○∙◄☻¥tπ[╪AV┼cVê└]

Yes. The 13 least populous states with only 13.15 million (4.7%) of the country's 281.4 million people should not be able to block a constitutional amendment. I was talking to some woman who thinks that the constitution should be amended to get rid of the electoral college. She rides the short bus for think there's any chance of that ever happening. Needless to say, she was a Schwarzenegger voter.

[KEmperor]

Absolutely not, we have enough crazy amendments that people keep trying to add anyway.

[Ebowed]

Uh, no.  Why should it be easier for same-sex marriage to be banned, or for free speech to be ended with a political gimmick flag protection amendment?

[afleitch]

Personally I'd make it harder.

[Beet]

The constitution is rather good as it is now, and people presently are no where near smart/responsible enough to make positive ammendments to it. It seems ridiculous to aid in the destruction of a great document simply to make it so courts aren't bothered by clarifying the law. Lightening the workload for judges is no reason to allow for irresponsible changes to the constitution.

But judges are coming under political attack for making decisions because the legislatures and states won't make them. Take McCain-Feingold for example. No matter of how the majority of the Supreme Court came out on its constitutionality, they would have been subjected to vicious criticism. Why should the work of constitutional reform be paralyzed?

[Beet]

Uh, no.  Why should it be easier for same-sex marriage to be banned, or for free speech to be ended with a political gimmick flag protection amendment?

Gee, a little hyperbole there, isn't it? Banning flag burning would hardly be ending free speech. And if that's the way you feel, you should be able to get at least 40% of the country to agree with you- in which case an amendment would never go through.

Also, given that 7 Republican senators opposed the gay marriage amendment, you wouldnt have to worry about it even if the threshold was lowered to 60.

[Sam Spade]

Not really.  The American Constitution would be worse for wear if more specificities were included.

Besides, the courts have already included certain public policy decisions in certain parts of the Constitution they choose to expand greatly (to the point of swallowing the whole) and other parts they choose to ignore entirely.  Further amendments would undoubtedly make this worse.

[Ebowed]

Uh, no.  Why should it be easier for same-sex marriage to be banned, or for free speech to be ended with a political gimmick flag protection amendment?

Gee, a little hyperbole there, isn't it? Banning flag burning would hardly be ending free speech. And if that's the way you feel, you should be able to get at least 40% of the country to agree with you- in which case an amendment would never go through.

No.  No.  No.

The flag protection amendment is based in the idea that setting fire to a flag as a means of protest undermines national heritage and is politically offensive.  Banning any action on these grounds IS an end to freedom of speech and freedom of expression, period.

Ordinary people support this amendment because they are unable to separate emotion from reason.  They think that a.) flag burning is a widespread problem, and/or b.) allowing Congress to ban it has no effect on everyday freedom of speech.  Both of these are plainly wrong.

To even suggest that freedom of speech should be repealed because 61% of the country supports it is tyranny of the majority.  The whole point of our Constitution is to preserve essential freedoms regardless of the ill-informed whims of the majority.  Making it easier to remove these freedoms is one of the worst ideas ever.

[Beet]

Not really.  The American Constitution would be worse for wear if more specificities were included.

Besides, the courts have already included certain public policy decisions in certain parts of the Constitution they choose to expand greatly (to the point of swallowing the whole) and other parts they choose to ignore entirely.  Further amendments would undoubtedly make this worse.

So you support what the courts have done? Somehow I doubt that, based on what you've written before.

The point is that when constitutional challenges come up they have to be settled somewhere. Either the courts can settle them or the legislatures can. In the former case, we would have a vague, unchanging constitution that is interpreted flexibly...  in the latter case we would have a specific, progressing constitution that is interpreted strictly. But ultimately, someone has to make the decisions.

This proposal was designed specifically to appese the originalists. It says "okay, judges have too much power, let's take away some of that power and put it in the hands of congress and the states." But you oppose this plan. Curious.

Uh, no.  Why should it be easier for same-sex marriage to be banned, or for free speech to be ended with a political gimmick flag protection amendment?

Gee, a little hyperbole there, isn't it? Banning flag burning would hardly be ending free speech. And if that's the way you feel, you should be able to get at least 40% of the country to agree with you- in which case an amendment would never go through.

No.  No.  No.

The flag protection amendment is based in the idea that setting fire to a flag as a means of protest undermines national heritage and is politically offensive.  Banning any action on these grounds IS an end to freedom of speech and freedom of expression, period.

Ordinary people support this amendment because they are unable to separate emotion from reason.  They think that a.) flag burning is a widespread problem, and/or b.) allowing Congress to ban it has no effect on everyday freedom of speech.  Both of these are plainly wrong.

How is b) plainly wrong? Before 1989, 48 of 50 states had statutes on the books restricting or banning flag burning, yet no serious person would say that before 1989, there was no substantive freedom of speech in the U.S.

[Ebowed]

How is b) plainly wrong? Before 1989, 48 of 50 states had statutes on the books restricting or banning flag burning, yet no serious person would say that before 1989, there was no substantive freedom of speech in the U.S.

The constitution didn't say anything about it.  Even if 48 states had some joke law banning flag burning, the Constitution guaranteed freedom of speech.  Under your plan we would have amended the First Amendment just to allow Congress to prohibit flag "desecration."

I'm curious though, if you want amending the constitution to be easier, why not allow a simple majority of Congress, or a simple nationwide popular vote?  Why should 40% of the nation be able to block a constitutional amendment?

[Nym90]

No, it rightfully should be difficult, as it indeed is. I believe it is the right and proper role of the courts to interpret the constitution.

[Sam Spade]

Not really.  The American Constitution would be worse for wear if more specificities were included.

Besides, the courts have already included certain public policy decisions in certain parts of the Constitution they choose to expand greatly (to the point of swallowing the whole) and other parts they choose to ignore entirely.  Further amendments would undoubtedly make this worse.

So you support what the courts have done? Somehow I doubt that, based on what you've written before.

An observation of fact does not mean that I support its results. 

In fact, I support some of the conclusions and not others, but this is only normal.  The trick is discovering what conclusions you support, why you support them, how this system of support/non-support fits within Constitutional lines, and developing a rational series of tests or bright-line rules that will logically explain the problems as they occur.

To say that I have reached the final point of this journey on a whole host of issues is far from true.

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As the comment I made above implied, I think the false assumption that you're making is that greater specificity in a Constitution will lead to it being interpreted strictly.  Even if a Constitution were to reach the specificity of a statute, there are plenty of instances in American jurisprudence where the language of a statute has been interpreted broadly or even opposite to what the "plain meaning" of the statute would be.. 

Similarly, having lived in a state (Texas) where the Constitution gives very little power to anyone and must constantly be amended like a statute in order to give new powers to state officials, I must say that this experiment would fail on a national scene.  It works statewide because the issues are not as complex as national ones, but the Texas Constitution is still filled with redundancies and provisions that overlap or no longer have essential meaning that drive judges nuts sometimes.

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Well, first off, let me say that your proposal might have added maybe say around 10 to 15 amendments if enacted when the Founders wrote it, most of which (Equal Rights Amendment/Flag-Burning Amendment come to mind) were pretty horrible amendments that should never have passed in the first place, so I don't really see any "huge" change that occurs through the proposal.  It's hard enough to get 2/3rds vote for most things anyway, even among Congresscritters.

Second, I am far from being a originalist.  I don't know what my universal judicial philosophy is yet, but that isn't it.

Third, judges only have power of the national government through the concept of "judicial review".  I am not questioning their amount of power; rather, I question their use of it in many occasions.

Also, as a general point, the USSC has rarely overruled Congress in this country's history.  Since 1937, the deference given to Congressional action is almost universal, especially in certain areas of the law; I'm willing to bet (haven't crunched the numbers) that more Congressional laws were struck down between 1900 and 1937 than have been struck down from 1937 to the present day.  To say that the USSC has taken too much power from Congress is simply inaccurate.

The states are, of course, a totally different issue.  Most of the Court's proactive behavior over the last 50 years has been to intrude into specific areas of the law that were normally defined by the states.  Whether you view this action as being good or not, this is where the increase in judicial power has occurred, not on the national level.

[A18]

No. The Constitution's principles should not be made any less secure. However, this would still require a 2/3 majority in both houses of Congress, and hence would make no difference as regards the flag desecration amendment.

I honestly do not see what thefactor is getting at at all. A more readily amendable Constitution means less "need" for judicial interpretation? What?

I understand that it would make judicial interpretation less influential, because the Constitution they're interpreting would be that less influential. I of course do not see this is a good thing. But what's with the above?

[Beet]

I have a lengthy reply at hand, but have no further desire to argue this point.

Suffice it to say that, IMHO, when legislatures cannot or will not (I lean towards cannot) step in to interpret constitutional clauses to meet the inevitable challenges raised, that leaves those interpretations to the courts. I'm not sure where the confusion is as to the mechanisms involved in this kind of dynamic.

[A18]

Well, the courts will interpret the Constitution regardless. The issue here is how easily the elected branches may 'override' (in the consequential sense) their decisions by amending the document.

You seem merely to be saying that judicial review leaves courts with too much power, and hence that the Constitution should be more readily subject to amendment. That is understandable.

But if, as another part of me suspects, you are suggesting that because the document is so difficult to amend, judges have greater legitimacy in giving its provisions bold new meanings, I must respectfully disagree. This theory seems to be rooted in the belief that because new social problems may arise that the framers on the Constitution did not foresee, judges must step up to the plate and solve these matters. But to assert that judges should settle these disputes because the elected branches can not settle them by constitutional amendment is more than a little silly, for they surely may still be settled by ordinary legislation.

This idea may make more sense to the extent that some want judges to remove restraints on the democratic process, imposed by the original Constitution, so that these matters can be hammered out by normal means. I believe that such people are still misguided, for the utility of a written constitution is precisely to "lock in" certain fundamental principles until they are properly changed. If a document is truly no longer workable, and so ridiculously difficult to amend as to require change by some means, it should be denounced as such and thrown out, not dishonestly interpreted. But this is a matter of degree, and it is important, when deciding how hard of an amending process is tolerable, to bear in mind not merely those provisions of the Constitution you dislike, because they get in the way of your concept of good public policy, but also those provisions you like the most, and don't want anyone to be able to change.