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Amending the Constitution

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Sandy Levinson criticizes the Constitution as too hard to amend, pointing to the lack of meaningful amendments over the last century. But, as Mike Rappaport points out, the complaint ignores the post-1937 judicial philosophy that permits judges to ignore the Article V limits on amending the Constitution, dissipating any political pressure to issue such amendments. The Equal Rights Amendment was mooted by Supreme Court decisions granting everything the ERA asked for; there's no movement to amend the Constitution to require recognition of gay marriage because everyone views a Supreme Court decision creating the right by fiat as inevitable. Of more concern is that there are four justices on the Supreme Court willing to write the First and Second Amendments out of the Bill of Rights as inconvenient to their preferred public policy goals of regulating political speech and self-defense, and a fifth could be appointed in the next presidential term.

As to the difficulty of policy change without consensus, that's a feature, not a bug.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

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