May 14, 2012

Amending the Constitution with 5 Votes

A New York Times article scorning the Constitution as unworthy of emulation approvingly quotes Prof. Levinson’s view that it is extremely difficult to amend. This is true of resort to Article V. However, unnoticed by the public and most pundits, activist interpretation abuse has effectively neutered Article V, amending the amendment process itself by transferring the amending power to the Supreme Court.

In practice, the justices have "interpreted" the very word "interpret" to be a license for them not only "to say what the law is," but to say it isn't what it is, and is what it isn't. Turning interpretation into a scam, they repeatedly have authorized what is constitutionally prohibited and prohibited what is authorized or required.  

In reality, myriad de facto constitutional amendments have been very easily adopted, often by as few as five justices. This has caused Supreme Court nominations to become proxy fights to determine what amendments are going to be imposed (and statutes rewritten). 

Given the number of Supreme Court appointments likely to be made between 2013 and 2017, the next election will be critical for the future of the Constitution and the country. It will determine whether there will be unlimited government power over the minutest details of the lives of the American people, limited only by newly invented "rights" never imagined by the framers.  

For more on this subject, see my article originally appearing here and slightly revised here.

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