Words that don't appear in the text of Sunstein's review: "framer," "framers," "founder," "founders," "father," "fathers," "forefather," "forefathers." It's a marvel how Sunstein did that. He says "authors of the Constitution" once, and "the founding generation" twice. He never says "forebears" but he does say "forbearance" a lot, referring to the way Americans have refrained over the years from amending the Constitution (in part, because the framers made the Constitution so hard to amend).
Here's my favorite "forbearance" paragraph:
You might think that the Constitution would be better if one or more [amendments] were part of it, but you might agree that the general pattern of forbearance is also in the national interest. You might even think that the founding generation was wise to make forbearance more likely, if only because of the importance of constitutional stability and the risk of harmful or ill-considered amendments. There could well be strong national majorities in favor of some amendments that Justice Stevens and civil libertarians would deplore, while national majorities would be exceedingly difficult to muster for some of the amendments that he proposes — a point that might strengthen the case for forbearance. And if you approve of forbearance, you might be inclined to reject most or even all of Stevens’s proposals for constitutional change, even if you think that on most or even all of them, he is right as a matter of public policy.
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29 comments:
John Paul Stevens was widely liked and admired.
Also widely loathed and despised.
If the constitution is living and breathing, why would you need to amend it? Just assume that it has evolved to mean what you say it does.
It just shows that those interpreting it that way, are making shit up as they go.
"If the constitution is living and breathing, why would you need to amend it?"
You don't, but Justice Stevens was doing what (he thought) needed to be done without getting all the votes he needed for a majority. All 6 proposed amendments are based on his dissenting opinions, which he didn't need a constitutional amendment to reach. He needs a constitutional to reverse the interpretation he disagreed with.
I also like the quoted paragraph. I find frequent complaints about "gridlock" and "obstructionism" to be puerile. Gridlock is a feature of the system, not a bug. Will we have a stronger republic if slim majority coalitions can adopt transformative rules and legislation in the face of passionate opposition, before anything approaching a national consensus on is reached on matters of import?
[sarcasm] The Affordable Care Act has been working so well, I cannot wait for similarly comprehensive, equally popular immigration reform! [/sarcasm]
can we get a critique of this column also
http://www.newrepublic.com/article/117619/classical-liberal-constitution-richard-epstein-reviewed
Haven't read the book, did read the review. I'm not qualified to make this statement & don't intend to be inflammatory but after reading my gut reaction is Stevens should be removed from office.
I could be wrong, but my understanding is the purpose of the Bill of Rights in the Constitution was protection of the people from government. I don't remember if "tyranny of the majority" is an original theme or something layered on, but if I understand it correctly Stevens thinks the majority rule should be dominant (is he a conservative? what happens to protect minority interests?).
I'm not a lawyer, didn't read the book, may be (hope I am) totally misinterpreting Steven's position.
I can barely restrain the impulse to slap my forehand to my forehead.
Mean "should never have been in office"
When one reads French history, one comes across such phrases as "First" or "Third Republic". Each Republic was based on a newly written constitution.
Does anyone really think that all this constitution-tinkering was a good thing in the history of French governance?
The Founding Fathers really did a good job, all told. Let's leave well enough alone.
The Left does NOT forebear.
Ann: " He needs a constitutional to reverse the interpretation he disagreed with."
Nope.
All he needs are about 5 kindred spirits on the Supreme Court and they can turn us into whatever they want.
Via penumbras and emanations and whatever else is handy at the time.
As we continue to see in our incremental march towards our "Forward!!" future.
These tyrant wannabes should refrain from using the term "living, breathing" constitution and just change it to "malleable" constitution. It will save time and effort.
I am more than a little tired of the "Women earn 77% of what men do!!!" (or whatever the number is this week). I am tired of it in particular and am tired of the equal pay argument in general.
Ann, you are a well educated, smart and well read woman yet I get the impression that you buy into this nonsense.
Of course there are some exceptions but by and large women DO get equal pay for equal work. The key is "equal". Compare apples to apples, not apples to oranges.
If a woman works 35 hours a week and a man in the same job works 45, they will most likely make the same hourly rate.
But, if that rate is $20 per hour, the woman makes $700/week and the man makes $950. (With OT)
Some will claim that the woman is paid less and this is what the 77% is based on.
In all likelihood, the man will make more on an hourly basis because he will 1) have more experience working 2,250 hours/yr to the woman's 1,750 and 2) Because he is more available, is more valuable.
Women work different types of jobs, they have different patterns of work and more.
You need an "equal pay argument is bullshit" tag.
John Henry
Ann,
My post on equal pay belonged in another thread and I have reposted it there.
You probably should not approve it for posting here.
John Henry
The founding fathers were disciples of John Locke and his Puritan views (Westminster Presbyterian) developed in the fifty and the two Civil wars between the Monarch and a Whig Parliament.
The essence of Locke was a contract exists that Kings must rule within all traditional laws and laws assented to by Parliament. That was the opposite of the English Catholic Church's (Anglican) Divine Right system.
According to Locke the people could hire Kings and fire Kings who broke that contract. Divine right absolutists need not apply. Ask William of Orange how he got his job.
Our Constitution defends that contract point of view of government and makes Amendments to it nearly impossible. Which also means Obama is impeachable for ignoring Congress' laws.
Amen Hegelian. I think we have the oldest Constitution in the world.
Britain claims to have an older one but, since it is not written down, it changes from day to day, as Bagehot points out in his history. If it is not written, it is not a constitution to my thinking.
It is a rock that we can stand on.
I forget what all the 6 things he wanted to change were but my recollection is that one of them was the 1st Amendment and another the 2nd. In both cases he would rewrite them to reduce rather than expand our freedoms.
I think that tells you something of his viewpoint.
The only amendment so far that did that, prohibition, proved to be a disaster and is also the only amendment ever repealed.
John Henry
"He needs a constitutional to reverse the interpretation he disagreed with."
Should read: He needs a constitutional amendment to reverse the interpretation he disagreed with.
"Nope. All he needs are about 5 kindred spirits on the Supreme Court and they can turn us into whatever they want."
Well, that was my point. He needed that at the time, and failing that, and off the Court, he has a book advocating amendments.
The book is more about how the cases are wrong than about why wrong opinions should be reversed with constitutional amendments. That's an important question, as Sunstein aptly shows.
Obviously, wrong opinions -- and right opinions -- can be overturned by later opinions.
You're right. Public policy trumps individual constitutional rights.
It's a living constitution after all.
Surprised Stevens didn't support the ban flag burning amendment since he believes that banning flag burning was not unconstitutional. This wouldn't endear him to liberals like Sunstein so he probably dropped it.
Like a lot of progressives, Stevens is not an empiricist. He doesn't ask if gun control actually worked or if overturning gun restrictions improves or at least doesn't exacerbate violent crime. He doesn't ask if corporate spending in elections has any effect on the outcome or why candidates and causes that are outspent still succeed. Stevens doesn't care about the Constitution or facts. Luckily Sotomayor is on the Court to continue that tradition.
The review doesn't talk about founders, but the first issue he discusses is the Second Amendment, where he talks about the original understanding of the Amendment for 200 years (no doubt a play on originalism). And he gives a shout out to Madison.
Fore!
Fore Left!!!!
@readering, FWIW we can retrieve the actual meaning of the words in the second amendment by looking at the writings of George Mason, known as "The Father of the Bill of Rights."
"I ask, sir, what is the militia? It is the whole people, except for a few public officials." - June 16, 1788.
I'm in a who cares? mood. Who cares what Private Citizen Stevens thinks?
I've noticed a lot of liberals/leftists proposing amendments to the constitution lately. I wonder if it's an attempt to distract from or deflect from the Section V convention of the states that is slowly building momentum after Mark Levin began pushing for it. Perhaps they even think that they could influence the outcome and get some leftist amendments approved.
geokstr
I didn't believe Ira Glass didn't know who NYT Exec. Editor Jill Abramson is, but I doubt many liberal/leftists know about NYT bestseller Mark Levin.
Should read: He needs a constitutional amendment to reverse the interpretation he disagreed with.
I liked it better the way you wrote it originally.
The reality is we have justices arguing the plain text of the constitution means exactly the opposite of what it says and the right to free speech is a collective right. I think we can dispense with the notion there's some sort of impartial legal analysis going on here.
It's power politics, and in power politics you just need your people in power to get what you want.
I keep hearing "The Constitution is too hard to amend." It's been amended 5 times in my lifetime and a 6th just before my birth. I'm suspecting what the people who say this really mean is "I can't get want I want because not enough people are smart enough to agree with me, so we'll get a judge to do it for us and screw democracy."
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