August 25, 2003

Proposed US Constitutional Amendment

I think that the gay marriage amendment people are wrong. But they're not wrong because they want to slap the US judiciary across the wrists. The problem is that they're too micro-focused on a cause of the day when they should be thinking bigger, grander.

The problem really is that the judiciary is writing new constitutional law when it should only be interpreting it. Writing new law is the job of a constitutional convention, the Congress, and the state legislatures using the amendment process. What is needed is a mechanism to declare that a judicial decision carries no value as precedent as it is writing new constitutional law and force that new law through the amendment approval process which is the way a constitution should be changed.

Of course, the problem is that this provides little check on the judiciary so far. The thing that will put teeth into it would be making writing new constitutional law in this manner an mandatory impeachment offense whether the amendment process wins or loses. Sure, you can fall on your sword as a judge and write new law as a judicial activist but you're likely to only be able to do it a handful of times before you get your butt bounced off the bench. If the Senate has to hold repeated trials of you for going astray, after awhile they'll just be tired of seeing your face no matter how well justified you think you are in making 'bold', 'progressive' rulings.

Posted by TMLutas at August 25, 2003 03:08 PM