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Friday, March 18, 2016

Amending the Constitution

For John, BLUFAsking five members of the Supreme Court to Change the Constitution is wrong, and dangerous.  Nothing to see here; just move along.

From the on-line magazine Task and Purpose, we have Mr James Clark talking about "Failed Constitutional Amendments That Would Have Changed How America Wages War".

While some expect the US Supreme Court to update the Constitution to fit current needs, those who are really serious propose and push a constitutional amendment.  This linked article talks to some of those proposed amendments in the area of warfare.

Regards  —  Cliff


Anonymous said...

Oh boy. Where to begin.

So some say the constitution should be updated interpretation-wise, but "serious" people say that it should only be updated via amendment? That's your position?

I don't KNOW what compelled you to make a statement as unsustainable as this, but let me take a guess and say that it's your reductive/low-information take on what Scalia and Thomas espouse, i.e. originalism.

A few questions: where do you draw the line between "updating" the constitution and "interpreting" it? Was C.J. John Marshall wrong in Marbury v. Madison -- when he entirely altered and fixed the power of the court in a basically completely unintended way without any sort of amendment? If so, why is that the most cited case, and why have we followed it for 200 years, and why is it the cornernstore of constitutional law?

Please point me to the constitutional amendment empowering congress to create a national bank -- or tell me why McCulloch v. Maryland was wrongly decided (maybe the second most important con law case of all time after Marbury).

Do you enjoy writing a blog about politics free from the fear of a lawsuit? Then explain to me how the court passed NYT v Sullivan (most important first amend case in our history) without an amendment?

Was Brown v. Board of Education an "updating"? If so, why did Scalia support it, and why is it the single most revered 20th century case?

How about Heller? Citizens United?

Or simply: define "updating." Draw the line in the sand for us: when is an amendment needed and when is it not. You might not find it that easy a task.

Talk-radio constitutional law is not, in fact, constitutional law.

-left of lowell

C R Krieger said...


"Talk-radio constitutional law."

I am actually more an InstaPundit, Althouse, Volokh Conspiracy type of person.  That said, I am not a law school graduate.

Of course Justices Scalia and Thomas are originalists.  And, beyond that, Justice Thomas thinks the Declaration of Independence is important.  As do I.

And I have always thought Marbury v. Madison was a tad dodgy.  On the other hand, it was accepted.  Flip that to President Andrew Jackson and his comment (regarding Worcester v. Georgia) "John Marshall has made his decision; now let him enforce it!"

I just think public acceptance would be better with a Constitutional Amendment.

How do you feel about a war amendment?  About us skirting the idea of a declaration of war since WWII?

And, thanks for a detailed and thoughtful response.

Regards  —  Cliff