Burnt Orange Report

I heard Orin Hatch speak once. He's a tool. Yes I said tool. He was supposed to speak about the Independent Counsel Law and instead took it to bash Bill Clinton.

Offering a constitutional amendment is a cost-free way to pander to an interest group.

I'm more concerned about what Hatch will do that actually might screw things up worse than they are.

Either way, Hatch is disgusting - he is either out to destroy the metaphorical blueprint of our politcal framework, or he is a shallow panderer who will whore himself out to the political fad du jour.

Remember, this is a man whose top Lieutennat was breaking and entering into Democrat's computer files for months. One would have to be a naive fool to think Hatch did not condone what was going on.

How about kicking Utah out of the Union? (and you would not even need a constitutional amendment to do it)

Why does offering up an amendment mean you hate the Constitution? Supporting a flag-burning amendment doesn't necessarily mean you're a total whacko.

And remember: this is a guy who would call himself "conservative." Ashcroft also favors 10 amendments to the constitution (not sure what they all are).

I revere and respect the Constitution. The Constitution was set up in a way that permitted amendments, but that deliberately made amendments difficult. That's well and good.

I disagree with Bumpers and Byron L., however, to the extent that they suggest — and I think they have indeed suggested — that proposed constitutional amendments are presumptively bad things.

Rather, I believe that an amendment that can and does muster the required support to be ratified therefore — by definition — sufficiently expresses the will of a sufficiently large (supra-majority) portion of "the People" that it should enjoy the same respect given to the balance of the Constitution.

Bumpers' statement is overbroad and simplistic. Among the proposed Amendments under discussion during his Senate career, for example, was the "Equal Rights Amendment" — which was submitted to the states in March 1972, before Bumpers' election, but which had its original seven-year ratification deadline extended to ten years while Bumpers was a Senator. The ERA surely was not "trivial" by anyone's definition, and I doubt that either Bumpers or Byron L. would call it "ill-conceived" or "politically driven." (The latter damnation is one I frankly don't even understand, unless it's re-interpretted to mean "driven solely by partisan politics to the exclusion of any rational principle.")

It is, I repeat, a good and appropriate thing that amending the Constitution is a hard and cumbersome process, burdened by institutional, procedural impediments. It is also a good thing that modern Congresses have become more careful about the enabling language in the amendment process to avoid odd results like that involving the Twenty-Seventh Amendment, which was first proposed in 1789 but only finally ratified in 1992. But allowing one's respect for this process to transmute into an unreasoning, across-the-board hostility to all proposed amendments is silly.

Of late, it's a silliness that has mostly been displayed by those of the political left, who are quite content to achieve their "amendments" to the "living, breathing" Constitution through the illegitimate and undemocratic processes provided by activist U.S. Supreme Court Justices. Sometimes — as is quite arguably the case with the ERA, for instance, which expired unratified in goodly measure because it became considered unnecessary by those who'd otherwise have supported it yet were content with the protection already afforded against sex-based discrimination under federal statutes and Supreme Court precedent — that court activism has become an actual impediment to the normal amendment process. And as the ongoing story in Massachusetts regarding gay marriage (or more obscurely, last fall's Prop 12 debate in Texas) may demonstrate, the backlash from the illegitimacy of "judicial amendments" may potentially result in the passage of "corrective amendments" that might not otherwise have managed to be ratified, thereby constitutionalizing a result precisely opposite to that which the activist judges intended.

Once again we here cries of activist judges "illegitamely" amending the constitution through an "undeocratic means."

First, there is nothing illegitimate about judicial review - Marbury v. Madison, almost as old as the Constitution itself, affirms this principle.

Second, our system of government is intended to have checks and balances, which includes some checks on the democratic process when it would opppress the rights of minorities. If majority rule prevailed everytime, we would still live under Jim Crow.

There is nothing illegitimate about Courts reviewing legislation for constitutional infirmities, and original intent is not the only legitimate means of Constitutionial analysis. If it were, the US Air Force would have been declared unconstitutional years ago (Congress has the express authority to create an Army and Navy, but no mention of Air Force).

The Constitution is to be tinkered with only when absolutely neccesary, and when there is no other means of accompishing the intended goal. Yes, no one can fault one for discussing amendments from time to time, but Hatch is a SERIAL amendment promoter. Such a man has no respect for the integrity of constitional rule and panders to the political fad du jour. We deserve better.

With all due respect, WhoMe? — and I intend to keep this brief, I'm trying to keep it impersonal, and I refuse to argue with you further:

"Judicial review" has nothing to do with this topic. Judicial review is the process whereby the courts confirm or reject legislation as being within or outside of the power of Congress under the Constitution. Roe v. Wade, for instance, was not a case that involved "judicial review" in any sense of that term; you won't find any citations to Marbury v. Madison in Roe.

Also, "majority rule" also has nothing to do with this topic. Please go re-read the Constitution; it specifies more than a simple majority vote of Congress for amendments to the Constitution. The reason we're not living under "Jim Crow" laws is because the Constitution was amended after the civil war, and then Congress finally passed implementing legislation by simple majority vote (like the Civil Rights Act of 1964, which was upheld as constitutional when subjected to judicial review). But when the Constitution's amendment procedures are complied with, they may indeed override the views and "rights" of even very vocal and adamant minorities; that was true when the Thirteenth Amendment did away with the prior "rights" of the minority of the public who were slave-owners, and it was true when the Twenty-First Amendment did away with Prohibition.

No serious student of the law, including the most liberal law professors, dispute that the Supreme Court has "created" rights that are not written in the Constitution. There is an argument about whether that's a good thing or not; reasonable people can disagree on that point, and I don't intend to argue my position in full here. Rather, I was making the much more limited point that when advocates for social change grow used to getting what they want through court decisions that create new constitutional rights, it can sometimes undercut their other efforts to get what they want through the democratic (but not simple "majority rule") process of amending the Constitution.

The Constitution is designed to keep government in check, ensuring personal freedoms by doing so. It is not the other way around, where today we hear from leaders who want to use it to define and limit personal freedoms. Only one Constitutional Amendment has ever attempted to regulate human behavior - the 18th, Prohibition - an infamous flaming failure that created a huge black market and made some Northeast families very rich. Limiting freedoms will cause market and popular reactions in every case.

Bush wants five amendments, 3 of which would attempt to limit personal rights - Flag burning (a popular protest while creating this country), same-sex marriage ban (actually a human rights issue), Balanced Budget (seems a bit conflicted in this administration), Abortion ban (while pushing for worldwide population control), and Victims Rights (they have to be protected from the judges who doll out justice?).

Congress, leave my rights alone, or be fired.

Beldar,

No Judge "creates" rights, a favorite myth of the right. Read the Ninth Amendment. The concept of popular sovereignty sets forth that we have certain rights with our without the constitution, and the Ninth Amendment reiterates this.

As Ronald Regan said, "In the Soviet Union, government tells the people, through the Constitution, what rights the people have. In America, through the constitution, the people tell government what rights it has."

The Ninth Amendment means exactly what it says - we the people have e.g. privacy rights whether the Constitution grants them or not.