Thursday, July 21, 2005

Random thought on judicial activism, Constitutional amendments

Bear with me on this post. This falls into the random brain storm category, and I'm curious to see if there is any agreement/disagreement with this thought.

Judicial activism is changing the nature of our Constitutional amendments. There was a time when the people approved new amendments in order to protect rights or to confer upon the Federal Government unenumerated rights of governance previously reserved to the states. As the Federal Judiciary has found more and more meaning in the Constitution, meaning not clearly reflected in the text but divined from it, our proposed constitutional amendments have become more about reigning in the Judiciary than protecting rights or conferring powers from the states to the Feds. Take the idea of a Flag burning amendment-it is a reaction to the courts deciding that flag burning is constitutionally protected free speech. Take the marriage amendment. In this case, it is a reaction to the expectation that the courts will somehow find in the Constitution the right to same sex marriage.

May the link be a little tenuous right now? Perhaps, but I expect it will become much more common. And the reason is because the creation of law has slowly moved from Congress to the Supreme Court, and the Constitutional amendment is one of the few ways to check the power of the Court.

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