Quote:
Originally Posted by cartman
No, no it wouldn't. I know this is a favorite line of thinking of yours, but it just doesn't have any basis in reality. You always say "it could be possible", but there is a mountain of legal precedent for laws to be found unconstitutional. That is the difference, a law can be found unconstitutional, but an amendment is by definition part of the constitution.
|
The difference is just on paper.
"By definition part of the constitution" is still subject to very creative "interpretation" under any kind of living constitution theory. Legislators and courts are not truly bound by what the constitution says, only by what their policy views interpret it to say.
Freedom of religion for example, has definitely shrunk a lot. Maybe that's good from a personal policy standpoint, but there's no question that 200 years ago, someone wouldn't be forced to take down a small war memorial that was on public ground on establishment clause grounds.
So we changed - that's fine, the establishment clause is growing in importance and freedom of religion shrinking. I'm not saying that's good or bad. I'm just saying that every right in the constitution is subject to severe curtailing, just depending on the policy views of the people that matter at the present time. That's exactly what the constitution was trying to avoid.
And maybe we've gone beyond those tricky early years and we don't need a constitution at all. The framers would definitely be down with that. That's a fundamental right - when your government doesn't work anymore, the people can tear it down and start again. I'm just not a fan of people using the constitution to make arguments that have no basis in the constitution, or the continuing of this "legal fiction" in appellate courts across the country that the constitution matters and their policy views don't. If we want to be a country that relies on the wisdom of judges first, we can do that. We don't have to lie about it and go through this whole goofy legal analysis when the judge is really just determining: "do I think gay marriage is good, or not? "