Part of the reason for having a Constitution in the first place is supposed to be that there are some things that are so fundamental that they ought not be subjected to ordinary democratic decision-making. If you don’t buy that premise, then we don’t need a Constitution at all (or at least a Bill of Rights). If you do buy that premise, then the question becomes whether and when that set of things that is above the ordinary law ought to change over time. One defensible position is that it ought never to change unless the change can make it through the very difficult amendment process. But the way that position is usually advanced is by incorrectly claiming that the only alternative to it is judicial tyranny and then daring your opponent to come out on the side of the tyrants, and that is not defensible. And that was the main point of the post.
The “Wise Elders” point is merely that if you take a position other than the “no change except for amendments” one and so allow for some additional (though still limited!) changes over time, then the question becomes who should have the power to make those changes. Presumably they should be people who are in some sense above the political fray, because by assumption we are talking about things that should not be left to ordinary politics. And I can see no reason why the people who are given that power ought to be primarily legal experts.
However fundamental they are, they’re still subject to some kind of decision-making. There’s no way around the difficulty: whoever makes the decision has interests, including an interest in expanding his/their own power. If the decision is too fundamental to be made by the people, then we’re saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we’re actually trying to promote, which is the general public. If they’re that much better than us that this makes sense, it’s irrational to leave anything at all to democratic decision-making. Besides, when we give the Supreme Court or the Wise Elders the authority to decide fundamental issues, who gets to decide what a fundamental issue is? Are we going to write it down—and who interprets this written document?
If the decision is too fundamental to be made by the people, then we’re saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we’re actually trying to promote, which is the general public.
One of the main ideas behind this type of Constitutional interpretation is that these decisions were already made by the people. That’s what the Constitution is, and it’s why states and Congress can’t pass certain laws, because they conflict with what the people have decided in the Constitution.
Part of the reason for having a Constitution in the first place is supposed to be that there are some things that are so fundamental that they ought not be subjected to ordinary democratic decision-making. If you don’t buy that premise, then we don’t need a Constitution at all (or at least a Bill of Rights). If you do buy that premise, then the question becomes whether and when that set of things that is above the ordinary law ought to change over time. One defensible position is that it ought never to change unless the change can make it through the very difficult amendment process. But the way that position is usually advanced is by incorrectly claiming that the only alternative to it is judicial tyranny and then daring your opponent to come out on the side of the tyrants, and that is not defensible. And that was the main point of the post.
The “Wise Elders” point is merely that if you take a position other than the “no change except for amendments” one and so allow for some additional (though still limited!) changes over time, then the question becomes who should have the power to make those changes. Presumably they should be people who are in some sense above the political fray, because by assumption we are talking about things that should not be left to ordinary politics. And I can see no reason why the people who are given that power ought to be primarily legal experts.
However fundamental they are, they’re still subject to some kind of decision-making. There’s no way around the difficulty: whoever makes the decision has interests, including an interest in expanding his/their own power. If the decision is too fundamental to be made by the people, then we’re saying that precisely the most important matters should be decided by people with interests that may not be those of the people whose interests we’re actually trying to promote, which is the general public. If they’re that much better than us that this makes sense, it’s irrational to leave anything at all to democratic decision-making. Besides, when we give the Supreme Court or the Wise Elders the authority to decide fundamental issues, who gets to decide what a fundamental issue is? Are we going to write it down—and who interprets this written document?
One of the main ideas behind this type of Constitutional interpretation is that these decisions were already made by the people. That’s what the Constitution is, and it’s why states and Congress can’t pass certain laws, because they conflict with what the people have decided in the Constitution.
Well, yes. That’s textualism: the decision was made and it’s written down right here.
A Council of Elders who make the decision for us is something else altogether.