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View Diary: Justice Scalia says Revolution may be necessary (185 comments)

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  •  This is exactly the point I was making. (1+ / 0-)
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    He did mention amendments, but the thrust of his comment was to say that the People have the right to change the Constitution whenever and however they please--and of course, the Declaration of Independence makes this point very clearly. The Framer's, especially Washington, understood that they were writing only a first draft.
    Everyone agrees the people have the right to change the Constitution.  The Constitution itself makes that clear because it contains ways for the people to do that -- the Amendment process.  

    The question where people disagree is how much the nine justices of the Supreme Court should "change" the Constitution.  Are the nine justices of the Supreme Court an example of "the people" changing the Constitution?

    Let me give you an example.  One of the big places that conservative justices and liberal justices disagree is in the meaning of the Commerce Clause, which gives Congress the power

    “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
    That's one of Congress's enumerated powers (Congress does not have the power to do anything it wants - it can only do what the Constitution specifically allows it to do -- that's the principle behind Congress' enumerated powers.)

    So, let's say that a lot of people think that Congress should have some power -- like to mandate the purchase of a private product -- that arguably was not contemplated by the people when then gave Congress the power to regulate commerce.  How do we give people that power -- through nine justices interpreting the Constitution so as to increase the power of Congress, or through the amendment process to amend the Constitution to give Congress that power?  

    Or, let's say some people think Congress should be able to tax wealth, not just "incomes" as provided in the 16th Amendment.   (The limits on Congressional powers are why states -- which have plenary power -- can tax wealth like a property tax, while Congress cannot.)  If you want Congress to be able to tax wealth, should that happen by (1) Nine justices "interpreting" the word "incomes" in the 16th Amendment to mean "wealth" (which would be a clear change in what the 16th Amendment meant when it was enacted) or (2) the people amending the Constitution to provide that Congress can impose a tax on wealth or property?

    That's the basic debate.  Arguing that the SCOTUS has broad power to essentially change the meaning of the constitution to adapt to the times gives the SCOTUS vast powers -- essentially making it more powerful than Congress.  That's great if you agree with the Court, not so great if you don't. (A conservative court could, for example, "interpret" the Constitution to provide broader protection to the power to Contract, and invalidate a lot of workplace rules).  On the other hand, it is very difficult to effect change through the amendment process, and it becomes even more difficult as we become more politically polarized, so maybe we should surrender that power to nine people if we want to see any real change in the Constitution.  

    It's a serious, legitimate debate.  

    •  It is a serious, legitimate debate that leads (1+ / 0-)
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      nowhere, therefore it is a waste of time.

      What is important is making the changes we need to build a better nation for us all, therefore we cannot get bogged down in these dorm room arguments. So, I will have nothing further to say to you.

      But, on the other hand, if you will provide us a detailed plan for getting from where we are to where we need to be within a reasonable number of years, say 10, then I will be happy to hear it and discuss it with you. Otherwise you and those like you are doomed to repeating the mistakes of the past. But that may be what you want. You may be so comfortable with the way things are going that you don't want a change.

      Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

      by hestal on Sun Apr 20, 2014 at 06:00:19 PM PDT

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