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November 07, 2007


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Having recently read half a dozen or more arcane essays on constitutional interpretation methodology, I am more convinced than ever that Judge Posner was right in declaring (in LP&D) that judges (even justices) make law, and I'm wondering if the problem is less how they make a law than how a sufficiently unpopular law can be unmade.

For SCOTUS, the two available methods - amendment or reconstitution of the court with the objective of having the law overruled - are cumbersome and time consuming. The latter deficiency is exacerbated by the concept of reliance which can make the long delay fatal in the case of reconstitution (eg, Miranda). Perhaps what is needed is a more efficient, effective, and majoritarian procedure, something akin to a referendum. This would still be cumbersome, but less so, and it could be relatively quick. To maintain the protection of the minority from the whims of a simple majority, a 75% supermajority should be required (effectively more stringent than the requirement for amendment).

In cases involving current culture war issues (which tend to be objections to rights creation), it would tend to have the advantage of avoiding amendments that limit or contract rather than expand rights, the general pattern except for the ill-fated 18A and arguably the 22A and 16A.

It would, of course, itself require an amendment, perhaps as part of Prof Levinson-et-al's proposed complete overhaul of the constitution.


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