Amending the constitution

...Sooner or later, however, the political branches, which are the custodians of democracy, are going to have to deal in some fashion with an increasingly authoritarian judiciary...

...That changed decisively when the court (in a 1971 opinion by that "true conservative" respecter of precedent, John Marshall Harlan) held, contrary to the previous understanding, that a young man wearing in a courthouse a jacket that had an obscenity on the back could not be prosecuted because one man's obscenity is another man's lyric...

...He evidently thinks that censorship of obscene materials has always been outlawed by the First Amendment...

...He remarked that my suggestion of censorship of obscene materials disqualified me for the court...

...The Founders had no idea what courts claiming the power of judicial review could become, and so they left us helpless before judges who place themselves above democratic government...

...Our courts will continue along these lines indefinitely unless we devise a counter...

...In fact, his test for appointment to the court would have disqualified most of the justices in our history...

...Even Midge Decter has written that "perhaps someone will find a decent and nondisruptive way" to return the court to its intended role...

...The "true conservative," if we must use that term, wishes to restore, so far as possible, the intended processes of our government and the original meaning of our Constitution...

...One begins to see the point in Friedrich Hayek's denial that he was a conservative...

...we usually discover what we've bought after the candidate is on the bench...

...Conservatives should not lead revolutions, but they contribute very little if, when things have gone badly wrong, they do not attempt counterrevolutions...

...Some years ago, federal judges met in Williamsburg, Virginia, at the same time as a conference of state supreme court chief justices...

...Harry Blackmun went on the court as a conservative, voted that way for a time, and then migrated to the far left...

...The Conservative Case for Amending the Constitution By Robert H. Bork One of the minor irritations of being conservative is listening to liberals, and sometimes even fellow conservatives, lecture on what it means to be a "true" conservative...

...Congress would be able to revise federal court decisions...

...That would surely be better than our present situation, unless you think, as many liberals do, that the people of the United States are irredeemably fascist at heart...

...I know two, both highly sophisticated in constitutional matters, who oppose amendments on the ground that the Constitution ought not to be "cluttered...

...In the case of state court decisions, the revision could be by the state legislature...

...The problem defies easy solution because it is embedded in the Constitution itself, which means that any solution will have to be structural...

...opposed amendments to allow school prayer and ban flag-burning as dangerous tampering with the First Amendment, "the foundation stone of both church-state separation and free speech...

...Meanwhile, the Supreme Court of Hawaii is about to rule that homosexual marriages must be permitted...

...The prospects for reform are not healthy...

...For two centuries," Yoder wrote, "the meaning of the First Amendment has been exclusively decided by jurists protected by life tenure from raw political passions....Tinkering with the First Amendment isn't conservatism, whatever values are invoked in its defense...

...Stronger measures will be required...

...Thus, columnist Edwin M. Yoder, Jr...

...It is simply not the case that the Constitution is what the courts have made of it in the last several decades...

...Columnist Anthony Lewis denigrated some of today's judicial conservatives by contrasting them with John Marshall Harlan who, he claimed, "was a conservative in the true sense, a judge who respected precedent...

...Few nominees have any track record, and none admit to being activist...

...Columnist David Broder wrote that the court "stopp[ed] the term-limits movement in its tracks and expos[ed] the glaring gulf between true conservatives and the radical-right-wing populists in politics today...

...It is pseudo-conservatism—in the pure state...

...New appointments to the court by presidents attempting to change its direction have not overturned left-liberal decisions of the past or even appreciably slowed the flow of new ones...

...At least a democratic clutter would be out in the open for people to vote on rather than hidden in the Supreme Court's little-read and often interminable opinions...

...The most activist left-wing justice in our history, William Brennan, was not suspected of being that when confirmed...

...Some conservatives also shy at the thought of any thoroughgoing reform...

...Hamilton, for example, wrote in The Federalist that the powers of the judiciary were as nothing compared with those of the executive and legislative branches...

...Nor is a change in personnel a promising course...

...Too few people understand the problem or, if they do, have the heart to face the inevitable charges that what they propose is eliminating the independence of the judiciary and, with it, our freedoms...

...There was much talk at the time of taking abortion cases away from the federal courts...

...Kondracke illustrates the point...

...The 105th Congress could perform a signal public service by holding hearings to explore the problem and possible solutions...

...Conservatives agree that our courts are producing a major constitutional crisis as federal and state judges increasingly, and with bland, indeed smug, indifference to the proper limits of the judicial role, usurp the powers that the Constitution places in the people and their elected representatives...

...The prestige of the judiciary has become so great, however, that the commentators almost uniformly tell us it would be dangerously rash to amend the Constitution to preserve what the courts are destroying...

...The Framers carefully provided checks by the executive on the legislature and by the legislature on the executive, but they provided none whatever upon the federal judiciary...

...The idea of refusing to confirm nominees who would be activists is a non-starter...

...The true conservative, it sometimes appears, may oppose fresh liberal Robert H. Bork is John M. Olin scholar in legal studies at the American Enterprise Institute and the author most recently of Slouching Towards Gomorrah: Modern Liberalism and American Decline...

...This refrain becomes deafening when the question of reining in a runaway judiciary arises...

...Lower federal courts have created a right to physician-assisted suicide and euthanasia...

...It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its choosing...

...Judges are transforming our national culture against the wishes of the electorate and without the slightest legal warrant...

...If these commentators would trouble to compare the present state of the law with the historic understanding of the Constitution, they would see that most of the amendments they oppose would alter not the Constitution but only the hash the courts have made of it...

...Liberalism is an aggressive force...

...In those days, the courts were true to the historical meaning of the amendment as a protection of the articulation and circulation of ideas...

...The frequently suggested tack of making exceptions to the appellate jurisdiction of the Supreme Court, as Article III, Section 2, of the Constitution permits, would, even if held constitutional, which is not a certainty, merely lodge federal constitutional questions irremovably in state courts...

...It is not clear why the utterly disruptive behavior of left-liberal courts over a period of five or six decades must be opposed only nondisruptively, whatever that may mean...

...The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments...

...As Justice Scalia put it in dissent, the Supreme Court is writing a Constitution for a country he does not recognize...

...It is difficult to see why that should be so...

...Why must the body politic tamely accept the amendments the court makes but offer none of its own...

...There is said to be a contradiction between conservatism properly understood (especially by liberals) and amending the Constitution to rectify the judiciary's more blatant distortions...

...There is nothing the least bit ironic or inconsistent about conservatives' wishing to amend the Constitution...

...Intellectual criticism is unavailing: Activist judges are moved by their policy preferences, not by logical argument...

...In the early prosecutions for the distribution of pornography, the pornographers did not even raise the First Amendment because nobody thought it was relevant...

...If, as some suggest, a constitutional amendment doing away with judicial review altogether were adopted, we would then govern ourselves in the same fashion that the United Kingdom and continental democracies have done successfully for centuries...

...what is left is fashioning a democratic check, and that will require a constitutional amendment...

...The power of judges would be legitimate in a democratic polity, he argued, only if we chose restrained judges or provided a democratic check upon the courts...

...Only recently, the court has created special rights for homosexuals, protected obscenity on cable television, and, in the grip of radical feminism, ruled, contrary to a century-old understanding, that state-run all-male military colleges violate the Constitution...

...I have suggested a constitutional amendment making any court decision, state or federal, past or present, subject to legislative revision by majority vote...

...He said that the decisive objection to any "true conservatism" is that "by its very nature it cannot offer an alternative to the direction in which we are moving...

...He might reflect that, at present, nothing protects us from the judges' raw political passions...

...The Senate has rarely knowingly confirmed activists...

...Its relative insignificance was so taken for granted that in the Philadelphia convention and in the ratifying debates almost no attention was paid to the court system that was being established...

...Censorship was regarded as entirely compatible with the First Amendment up until recent years...

...The reason was not that they wanted federal courts to be uncheckable policymaking bodies but rather that those who wrote and ratified the Constitution thought of the judiciary as a branch of government that would merely carry out the will of others...

...Oddly enough, commentators like Lewis do not complain when liberal activist judges override precedent (I do not recall his agonizing over the Warren court), but "true conservatives" should respect precedent because that means preserving the handiwork of the liberals...

...The Constitution may be a document of elegant simplicity on its face, but it is now thickly cluttered with judge-made amendments...

...She speculates that I might know how to do that, but says she tends to doubt it because I seem "too outraged by the Court's misbehavior and too unhappy with what [I] see as the public's complaisance to be able to come up with a truly conservative [those words again] prescription...

...In 1942, a unanimous Supreme Court stated that there was no constitutional problem with banning the lewd, the obscene, and the profane...

...Jefferson warned us of this, as did Lincoln...

...Learned Hand, probably the greatest of our court of appeals judges, said the system is fatuous that gives such powers to men it insists shall be independent of popular control...

...Columnist Morton Kondracke disapproved of my suggestion that a constitutional amendment give Congress the power to override court decisions because he did not want the legislature revising the Constitution...

...These comments assume, quite mistakenly, that tampering with court decisions is tampering with the Constitution itself...

...If one were to bet, the odds are that matters will continue as they are as far as the eye can see...

...Courts have all but banished religion and religious symbolism from our public life, created a wholly spurious right to abortion, made discipline difficult to impossible in public schools, required discrimination by race in public schools, ordered violent felons back on the streets because of what judges perceive as overcrowding in prisons, taken over the hiring and promotion policies of police and fire departments, required drastic changes in the composition of state legislatures, and transformed the First Amendment from a protector of ideas to a protector of self-gratification, so that obscenity and pornography are rife in our culture...

...We have never succeeded in finding a majority of restrained judges...

...Once the power of judicial review was claimed, the result was inevitable: a slow but inexorable expansion of rule by judges...

...But even that may be too much to expect in today's climate...

...Their behavior, as we have repeatedly seen, is unlikely to be any better...

...depredations but must docilely preserve liberal victories of the past...

...The state chief justices unanimously adopted a resolution that, in that event, the state courts would follow federal precedent...