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

1. Con equates democracy with mob rule. I challenged Con to prove that human rights are trashed in democracies while being elevated in dictatorships, monarchies and other forms of imperial rule. Con responded that (a) prisons are too harsh in Japan, (b) freedom of speech is limited in France, and (c) the UK has considerable surveillance of public spaces. He further noted that all three have taxes. Con makes the error of supposing that if Japan has harsh prisons or France has some limitations of human rights that it proves overall that there is mob rule and that those democratic countries have no better overall record of human rights than North Korea or Zimbabwe or any other fascist state. I grant that no country has a perfect embodiment of human rights, at least not as I conceive of them. However, that none are perfect does not make them all equal. Con must prove that, overall, unchecked power favors human rights by contravening democracy. His examples of surveillance of public spaces is erroneous, because there is no human right that protects against being observed in a public space. If there were such a right, no crime committed in public could be prosecuted using witnesses to the crime. The argument that imposing taxes is a violation of human rights is novel. Con recognizes that there is no possibility of having such a right recognized democratically, so the only change of getting what he wants is through a Court edict. The proposed amendment is designed to prevent such extreme aberrations. Con argues that the Supreme Court is not omnipotent, because is a weak despot. It is not necessary to be an absolute monarch to be a monarch, or an absolute despot to be a despot. The question is whether having substantially unchecked power within the domain of the Supreme Court is the best way to determine and enforce human rights. Con's argument is non-responsive. 3. Con asks, "How exactly is it unchecked, when the other branches of government ignore what it says half the time anyway, and appoint it?" Con offered no evidence that Court decisions are ignored "half the time." If that is true, con should be able to produce a substantial list of Court decisions that were ignored. For example, he should be able to prove that Roe v. Wade was ignored, or to something else of that importance. Clearly, important Court decisions are obeyed. Having the Court appointed does not provide a check on its power. It is of some help in getting despots who are more benevolent then they might be. However, after a judge is appointed, the judge can do as he or she pleases. Reagan appointed judges who he thought would rule as strict constructionists, but who turned out to be judicial activists. What happens is that the "power corrupts," some appointees cannot resist doing what they believe to be good, knowing it cannot be checked. 4. I claimed that democracies do an adequate job of protecting human rights. Con replies, "No, because no human right that the majority wants is what needs protection. It's only the ones that the majority doesn't want that are threatened. A "simple majority" does absolutely nothing to protect rights that a despot wouldn't have to anyway." This repeats the logical error of supposing that because that democracies do not do a perfect job of protecting human rights, that they are therefore no better that dictatorships. He states directly that dictators would grant all the human rights that a majority would want. So, for example, according to Con, North Korea and Cuba should have all the rights of free speech given in Japan, France, or the U.K., which he proclaims to be under mob rule. This is clearly false. The way that a written constitution improves over a simple legislative majority is that the Constitution determines certain rights in sober moments when rights issues are considered with great care, are voted into effect by two-thirds majorities, and thereafter can only be changed a two-thirds majority. The proposed amendment does nothing to change that system. The Bill of Rights remains in effect and it remains enforceable by the Court. What is changed it that new alleged rights cannot be invented by the whim of the Court. New rights must go through the designed process of public deliberation. This reflects Con's misunderstanding of the meaning of the rule of law. 5. Con argues, "Just because the Supreme Court is too weak to uphold the rule of logic is not sufficient to establish the truth of it's statements, further, the womb is presumably MORE fundamental property than a house." There is no weakness in the Court that limits their ruling. If the court wanted to make the fanciful claim that abortion is just like quartering soldiers, they could do so. Con's real objection is that the Court did not use it's omnipotent power as he wished they would. That is precisely my argument against the Court having such power. The Court could at any time find the explicit right to life granted by the 14th Amendment to prohibit abortion. The only guard against such a ruling is to restrict the Court to enforcing existing rights established democratically. 6. Con never argues that the fetus is a soldier or that the government forced the fetus into the womb. He argues that if one understands rights the way that he interprets them, then something that isn't in the Constitution, but which he thinks ought to be there, could be invented and enforced. If a court could use the logic that makes the fetus "like a soldier" then the Court could justify virtually anything with strained logic. The "general welfare" clause could mandate anything desired. The proposed amendment would effectively prevent such nonsensical arguments becoming Court mandates. 7. Con argues, "Bad reasoning in support of justice is superior to the unjust enslavement of women." (ah yes, I forgot the forced labor clause of the constitution, which is far more unequivocal!), which would result without it (at the time of Roe V wade, it is highly doubtful that 2/3 could not be summoned up for anti-abortion laws)." In other words, the end justifies the means. But that is only true when the end comes out the way you want. Con seems to have granted my argument that the Court could chose to use its unchecked power to ban abortion if it wished to. If the proposed amendment were passed, the decision would be left to legislative majorities state-by-state. I have no doubt that laws would be passed that would permit abortion for most states immediately, and that other states would eventually fall in line. At one time permitting divorce was highly controversial, but the states changed one by one. Supporters of any position they belief just and logically sound should have confidence that they can prevail. 8. Con argues, "I think you missed the ninth amendment, that means enumeration of some rights is not a disparagement of others- likewise, justification of abortion by some rights is not a disparagement of justification by others." The Ninth Amendment could be used to find any supposed right., just as the general welfare clause can be used to justify anything deemed good. However, the Ninth Amendment has never been used by the Court to mean anything other than that the States can establish additional rights. The proposed amendment preserves that interpretation. Con argues that judicial activism will provide what he wants: a guarantee of abortion rights and a declaration that taxes are violation of basic rights. I'm not willing to leave either issue to anything other than democratic processes. While I grant democracy is imperfect, it is a much better system.