Constitution too hard to change

2012-10-07

Supreme Court Justice Antonin Scalia is promoting his new book like there is no tomorrow. Among the flurry of similarly worded presentations, the Associated Press picked up a point he made in a speech to the American Enterprise Institute:

Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.

“It is very difficult to adopt a constitutional amendment,” Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.

Antonin ScaliaAntonin Scalia | AP Photo, Jessica Hill

I agree. It echoes my observation that the German constitution is much easier to change, making it a living constitution and certainly easing the interpretative burden on the highest court.

The elected executive and legislative branches have a legitimate interest to update constitutional law according to the people’s evolving moral standards. Right now, that interest is funneled into an unproductive fight over judicial nominations, trying to exert indirect influence over the Supreme Court.

It would lead to a much more healthy discourse, and probably to better and more bipartisan judicial nominations, if there was a workable approach (and thus an obligation) for the legislature to discuss and decide these issues directly.

Whatever people think of Scalia’s political views (uh, philosophies), the consistency of his views is always refreshing.

Politics v. Philosophies

2012-07-30

I stand corrected. Supreme Court Justice Antonin Scalia went on Fox News Sunday saying: “I don’t think the court is political at all”.

Antonin ScaliaAntonin Scalia | Fox News

He conceded, though, that people might have that impression, but that’s because of how the justices are selected – for their “judicial philosophies”. Republicans choose “originalists and textualists and restrained judges”, Democrats choose “the opposite, people who believe in Roe v. Wade”.

So justices don’t vote their politics, they vote their philosophies. Fine. There is no reason not to take Scalia’s word for it.

Whether, however, at the level of the Supreme Court there is any significant different between philosophy and politics, would be an interesting conversation. Both are fundamentally about values, after all.

What is clear, though, is that there is no lack of political skills on the Supreme Court. To make his colleagues choose between either being an “originalist” or being “pro-abortion” is such an artful form of slanting, that I once again tip my hat to Scalia.