Morning, Gentle Readers!

We did some of the controversy about our holiday proliferation yesterday. There could be more excitement caused by the growing conflict over the Supreme Court. It includes legitimacy, which was one of the topics covered in the more than 100 days our Constitution was under discussion by the members of the Convention charged with formulating our new means of governance. The process for updating it was included, since the Convention recognized that they were not blessed with perfect knowledge and some things would naturally change. Those circumstances could be addressed to modify the founding documents through the Amendment Process. Ten of them were included in the original document they passed.

Amending our Constitution is, by original design, an intensely difficult process. Changes to the founding documents were viewed with a skeptical orientation. The Framers- and note these people were all white male property-owners- fully intended change to be a tough process. Since the adoption of the Bill of Rights – the first 10 amendments to the Constitution, only 17 amendments have made it through the process. The last of them was ratified in living memory for some back in 1992.

There are four ways to amend the Constitution, though only two have ever been used. The first of these is a Congressional proposal method and the other is by convening of a Constitutional convention. In the first, two-thirds of both chambers of Congress must propose an amendment. The proposed amendment must then be ratified by three-fourths of state conventions or state legislatures. Congress gets to pick which one. The other amendment process is conducted through a full-blown convention not dissimilar to the original Convention that concluded in 1791.

The latter method could include the entire spectrum of governmental affairs, and thus is viewed with a certain suspicion. But you can see if such a sharply divided electorate, the first Amendment process specified in Article 5 of the Constitution. The idea that two-thirds of any group of citizens could agree on anything these days seems unlikely, which is what brings our current situation into sharp focus.

You may have noted the interest in the behavior of the Supreme Court. Justices are appointed by the President when vacancies are open. The political orientation of the President will naturally be reflected in the views of the nominees. Those views will logically be applied to cases argued before the Court. Changing times have changed the basis for decision-making by the Court. The second half of the 20th Century included a variety of Court decisions that seemed to reflect a determination to provide an alternate legislative process, instilling “Constitutional” rights on matters that never would have occurred to the Framers.

Through pure chance and timing, the Supreme Court of fifty years ago decided to insert modern thinking on matters pertaining to education, abortion and a host of other issues it determined to be covered by Constitutional implication rather than words. Timing alone and replacement of those Justices has sparked a battle in the Lawfare being conducted by both sides.

In simple terms, the conflict is between two distinct views of the Constitution’s authority. “Originalists” tend to support the notion that if a subject is not mentioned specifically in the Constitution, it is the province of Congress or the States to legislate, with the “Constitutionality”of such legislation subject to review by the Court. The “Living Document (LD)” theory holds that the Founding Documents should be subject to review for good new ideas as they occur over time. It also avoids the difficulty of the Amendment process.

Both schools of thought naturally have advocates with good cause. We are seeing them being played out in the Dobbs decision that abortion is not mentioned in the Constitution and hence is a matter for the States to decide. Yesterday, the concept of Affirmative Action was also rejected as a Constitutional issue. Reaction has sparked cries to amend the Court itself by adding (Packing”) Justices more attuned to one or the other philosophies. We may see demands for reform of the process, which could include all four of the potential Amendment processes.

Fighting over our founding documents could result in dramatic change and dramatic reaction. We tend to support the Originalist position, which puts specific action before the States, subject to review against the intent of the original Constitution. Others disagree. One thing that is certain is that along with our celebration of Independence, there is an impending struggle on what exactly that means to those of us living today. It is likely to be fun, even if it is not original!

Copyright 2023 Vic Socotra
www.vicsocotra.com