The U.S. Constitution Should be Amended to Limit Judicial Activism

1. Con equates democracy with mob rule. Thus, for example, France, the United kingdom, and Japan, which have no imperial Supreme Courts, are all ruled by mobs. Presumably, Con should be able to show that the mobs have trashed all human rights in those countries, yet Con provided no evidence that has happened. The alternative to "mob rule" is imperial rule, wherein the despot is immune to the will of the claimed "mob." Thus, we should look to North Korea and Zimbabwe as bastions of human rights. Con provided no evidence that a single place on earth under any form of imperial rule has accomplish what Con claims. Therefore the argument fails. The U.S. works with a system of checks and balances design to keep any one branch of government from ruling without limits. The defect in the system is that the Supreme Court has acquired, through tradition, power that is substantially unchecked. Most democracies resolve human rights issues with a simple majority of the legislature, and that works adequately. Requiring a two-thirds majority is not a strong check, because it is and always has been difficult to get two-thirds concurrence on any issue. Nonetheless, the check stands as a warning to the Court that their power is limited, and that will limit the imperial hubris that motivates some decisions. 2. Con argues that men make laws so therefore there is no difference between rule of law and rule by men. Rule by law is in fact distinguished by the laws being debated publicly, revealed so that citizens know what the laws are, and applied by judges while "rule by men" means that what is legal and illegal is not subject to democratic debate and may be revealed at any time without warning without check. Con's argument applies to imperial rule in that having the monarch or dictator make and reveal is the same as a democracy because the monarch is a "man" and the legislators are also "men." The distinction is not at that level, the distinction is in the process of deliberation, codification, and judicial application of the laws. 3. Con argues that abortion rights are clearly specified in the Constitution by the requirement for "due process" in taking property and under the prohibition of "forced quartering of soldiers." "Due process" simply means that the taking of property must be done in accordance with some law. The Supreme Court has ruled that it is constitutional to seize a person's home for the purpose of reselling it to a developer to increase the tax base, so long as there is a law that permits it. Therefore, the property rights guarantee in the constitution is extremely weak and clearly does not apply to abortion. For the "forced quartering of soldiers" to apply, Con must prove that (a) the fetus is a soldier, and (b) the government forced the fetus into the womb without the consent of the mother. I await that proof. The Supreme court is already on record as refuting Con's arguments, having ruled that the basis of Roe v. Wade was an unarticulated right of privacy, not seizure of property or quartering soldiers. Con claims that the Courts ruling ought to unchallengeable, therefore he has implicitly ceded that his points are invalid. Con's argument is beside the point of the debate. I am pro-choice. The difference with respect to this debate is that I want the laws to be made democratically and not by imperial fiat. I am confident that the democratic process will produce pro-choice laws. Con wrongly assumes that the benevolent despotism will always favor his position, but he has offered no argument that such will happen. The Constitution states explicitly, in the Fourteenth Amendment, "nor shall any State deprive any person of life, liberty, or property, without due process of law." Separately, the Supreme Court has ruled that imposing a death penalty for any crime other than murder is unconstitutional. Putting the two together, no law permitting abortion is Constitutional. No, I don't think that is good argument, for the reason that abortion was never contemplated in the Constitution. However, if the unchecked supremacy or the Court is allowed, it would be a trivial matter for a new Court to make such a ruling based upon the explicit language and past precedent, and there is nothing to stop them from doing that. The proposed amendment would provide the needed check. 4. Con claims "You do not have to defend the benevolence of something when the alternative is so clearly not benevolent. Mob rule, i.e. electoral democracies, left unchecked, spawned Hitler." What Con desires is precisely unchecked rule. He supposes that the court having unchecked power to invent anything it wishes and make it law is good because he relies upon the Court to always rule as Con thinks appropriate. I agree that democracy should not be unchecked, however, imperial rule should also not be unchecked, which is why the proposed amendment restores the system of checks and balances. It does give the final word on certain issues to the legislature, but with far greater safeguards than in any other democracy. Con is implying by his logic that a Hitler would be okay provided he ruled through a court rather than through the Executive branch, because, for reasons never expounded, judges always do good and therefore can be trusted with arbitrary and unchecked power. 5. Con asks, "Would you rather have an evil unopposed to deal with, or an evil splintered into two factions that fight each other, so they don't have as much time to deal with you? Benevolence from such a despot would be just a bonus, not needed to hope for their arrival.[?]" The question poses a false dichotomy, that evil will either be unopposed or will be opposed by a despot. The dichotomy is false because there is ample evidence that democracies will oppose evil. In fact, despots universally defend the right of despotic rule, which is say they defend evil rather than oppose it. Look, for example, at how the non-democratic nations in the U.N. vote on issues that would undermine dictatorships. A standard mechanism used by despots to keep in power is that only their absolute rule will keep the country safe. That is used by Kim to justify his rule in North Korea, for example. 6. Con claims, "The constitution, as ineffective a barrier as it is, was meant to put a STOP to democracy. It cannot be honored by democracy except in the breach." The claim is false, because the Constitution explicitly requires democratic elections. That is requiring democracy, not putting a stop to it. It is true that the Constitution establishes a republic, which is one check on democracy, and also establishes three branches of government with a system of checks and balances. The system of checks and balances is designed to prevent a single branch of government from gaining despotic powers. That system has been undermined by the Supreme Court seizing the ability to legislate, with no effective check on that power. Nothing in the Constitution suggests that use of judicial power. The proposed amendment does no more than re-establish a proper system of checks and balances. Con pointed out the efficiency of despotic rule in comparison to the democratic system of checks and balances. I agree that there is a whole lot less debate in a dictatorship. King George was rarely delayed by debate. However, the American Revolution the choice in favor of tolerating debate, and we should stick with that now.