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October 16, 2018|constitutional amendments, Court-Packing, Term Limits Jim Lindgren

Prohibiting Court Packing by Constitutional Amendment

by Mike Rappaport|

U.S. Supreme Court chambers (stock_photo_world / Shutterstock.com).
A constitutional obstacle to court packing would be tremendously valuable, but it might have downsides as well.

June 27, 2018|Comparative Constitutional Law, constitutional amendments, Equal Rights Amendment

The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional

by Mike Rappaport|

The Preamble to the U.S. Constitution (David Smart/Shutterstock.com).
Congress and the States are better judges of what constitutional amendments should exist than the Court.

June 19, 2018|Comparative Constitutional Law, constitutional amendments, judicial activism

Unconstitutional Constitutional Amendments

by Mike Rappaport|

The U.S. Constitution (Sergey Kamshylin/Shutterstock.com).
Can procedurally-sound amendments to a constitution be declared unconstitutional?

May 25, 2017|constitutional amendments, Deficit Spending, fiscal policy, James Buchanan, James Buckley, neo-Keynesians

Amending the Constitution with Buchanan and Buckley

by Michael S. Greve|

US Constitution Historical Documents with Quill Pen

Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.

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February 9, 2017|constitutional amendments, Lame Duck Pardons, pardons

The Language of the Lame Duck Pardon Amendment

by Mike Rappaport|

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons.  While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism. But having an idea about what an amendment should do and writing the language of that amendment are two different things.  Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment.  Steve has both more taste…

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January 23, 2017|constitutional amendments, lame duck actions, Originalism, pardons

Let’s Pass a Constitutional Amendment Prohibiting Lameduck Pardons

by Mike Rappaport|

I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law.  One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971.  (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992). One result of this failure to employ the constitutional amendment process is that the process is atrophying.  As a matter of political psychology, people do not think enough…

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September 10, 2014|Campaign Finance, constitutional amendments, Harry Reid, Machiavelli

Seizing the Opportunity to Revisit the Republic’s First Principles

by John O. McGinnis|

On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!

The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.

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May 8, 2014|constitutional amendments, Eric Posner, Originalism

Constitutional Amendments – Once Again

by Mike Rappaport|

I have written several posts on the constitutional amendment process, but I cannot let Eric Posner’s new piece for Slate magazine pass without comment. Eric’s piece is an excellent example of the conventional wisdom that the constitutional amendment process is too difficult – a wisdom that I believe is seriously mistaken.

Eric writes that “any proposal to amend the Constitution is idle because it’s effectively impossible” – because it is too difficult to amend the Constitution. But as I have argued before and with John McGinnis, the main reasons we do not see constitutional amendments are due to nonoriginalism.  These reasons include:

1. It takes a consensus to amend the Constitution, and that consensus takes time to develop. But nonoriginalist courts judicially update the Constitution before that consensus has enough time to develop.

2. Some amendments are attractive only if the Court can be trusted to enforce them as written. But if the Court is nonoriginalist, then people may not trust the Court to enforce the amendments and therefore may not want to give the Court more power.

3. Since constitutional amendments are hard to pass, interest groups will often seek alternatives that are easier to achieve, such as packing the courts with people who will rewrite the Constitution to further the group’s vision. Once again, this will only happen if nonoriginalism is allowed.

4. Constitutional amendments often require compromises in order to secure a consensus. But if there are alternative mechanisms, such as judicial updating, interest groups will choose not to compromise and instead will seek to have judges appointed who share their vision.

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April 6, 2014|constitutional amendments, Emily Zackin, positive rights, state constitutions

Constitutional Politics in the States

by Keith Whittington|

Zackin book cover

I have just returned from the annual confab of the Midwest Political Science Association. The MPSA is not my favorite haunt (the folks there tend to like putting the science into political science), but I was delighted to be part of a panel discussion of the important new book by Emily Zackin, Looking for Rights in All the Wrong Places.

 

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October 15, 2013|constitutional amendments, Interpretation, Originalism, Precedent, Supermajority Rules

Originalism and the Good Constitution

by Mike Rappaport|

My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November).

The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.

While the book offers this new argument, it does quite a bit more, exploring various issues of originalism based on the book’s overall theory. First, the book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution. This interpretive approach is defended both as the most accurate way of determining the Constitution’s meaning as well as the method that will lead to the best consequences.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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