The Constitution Is Not Sacred…

if by sacred we mean that it should never be changed. Liberal commentators have made lists of changes to the Constitution that Gov. Rick Perry has proposed over the years:

He has spoken favorably about amendments to end the lifetime tenure of federal judges, to allow supermajorities of Congress to overturn Supreme Court decisions, to repeal the Sixteenth and Seventeenth Amendments (which established, respectively, the income tax and the direct election of senators), to limit federal spending, to define marriage in American law as the union of a man and a woman, and to prohibit abortion.

How are these positions – an immutable belief in the sacredness of the text and a desire to change it – compatible, they ask?
Ramesh Ponnuru answers.

Constitutionalism, in short, is simply a special case of respect for the rule of law: the case in which the law in question is the supreme law of the land. The rule of law demands that those who apply the law — be they judges, sheriffs, presidents, or governors — apply it faithfully. If those officials can change the meaning of the words, there is no point to having a written law.

Rather, officials and judges must be “willing to abide by [the Constitution and its Amendments] until subsequent amendments nullify or modify them.” Such amendments should be formal and explicit according to the procedures set forth in the Fifth Amendment. Constitutionalism does not prescribe that judges selectively interpret the Constitution to effectively amend it outside of the Fifth Amendmen procedures. Perhaps this is why progressives are generally more opposed to the idea of formal amendments. “Recall that after the ERA failed, liberals achieved almost everything they had wanted from it through the courts. There is nothing that liberal legal academics and activists refuse in principle to read into the Constitution because the ERA is absent from it.” This attitude saves them the trouble of enacting change democratically.
Ponnuru concludes,

It may be that some of these amendments are undesirable, or are not worth pursuing for some other reason. (At least four of the seven strike this conservative constitutionalist as unwise.) But they are clearly constitutionalist in spirit. All of them involve following the proper constitutional channels for constitutional change — channels that require a great deal of public deliberation and support before the change can occur.

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Filed under Election 2012, Law

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