A Constitution We Are Amending: In Defence of a Restrained Judicial Role – Lawrence H. Tribe

Issue: Non-deferential judicial review of constitutional amendment process.

The author doesn’t agree with the proposition that the legislation enjoys “sole and complete control over the amending process, subject to no judicial review”. However, the fact that the judiciary is allowed to police the outer boundaries of the amending process doesn’t necessarily answer the question of how the courts should go about the same, or whether the judiciary should set up its own comprehensive standards or leave it up to the legislation’s will.However, the author doesn’t agree to Professor Dellinger’s argument that complete judicial freedom and zilch role on part of the legislation to ratify amendments would reduce uncertainty in the amending process doubts that exclusive judicial control on amendments would make the whole process more certain without compromising on constitutional flexibility.He cites the danger as pointed out in the case of Goldwater v. Carter (444 U.S. 996 [1979]) that the Supreme Court oversees the very constitutional process used to reverse its own decisions. Professor Dellinger tries to rebut by arguing that there are only a few such provisions in the constitution designed to overturn the Supreme Court decisions and that most, if not all amendments are proposed to tackle problems with departments other than the judiciary. However, the author says that the very reason behind why a legislative body proposes an amendment is because of national dissatisfaction and when mere legal corrections are not enough. At this point the author says amendments in such cases are amendments to constitutional politics and not constitutional law. The author however says that even if the exclusive judicial control is not satisfactory, so isn’t the legislation’s plenary power over the jurisdiction of courts over the review of legislation. Thus, he comes down to the basic issue he addresses in the articles, whether the constitutional criteria to resolves conflicts should be crafted with deference to the legislature?The author highlights that judicial supervision not only arises in the amendment procedure but in the substance of the amendment as well. This comes form the understanding that the constitution is not a set of unconnected and discordant rules and regulations, but is in actuality a unified document which tries to adhere to the basic political ideals: federalism, separation of powers, representative republicanism etc. Thus, as long as it is amended, these amendments can’t ignore these fundamental norms. However, this situation is not free from scrutiny because this leads to disputes on whether the proposed amendment actually does break away from these fundamental norms. For example an amendment to ban abortion on one hand asserts fairness and sanctity of human life; it may violate individual autonomy, privacy and equality – All of these being constitutional norms, but who is to decide which supersedes the other still remains disputed. Thus, not only are the fundamental norms of the constitution open to debate, so is the objectivity with which they are deduced and applied. This problem arises because the constitution cannot possibly dictate its followers as to how to approach it and hence freeing them of the responsibility of choice.In addition to the substantive limitations on the amendment’s appropriateness, there maybe be structural limitations within the constitution itself. For example highly specific amendments like banning handguns would seem absurd if places in the main text of the constitution, no matter how desired they may be.Not only such absurd amendments make them much harder to modify since they are brought about by the constitution rather then by statute, they tend to trivialise the constitution and belittle the educative and affirmative impact of the constitution in our political and legal structure.

A Constitution We Are Amending: In Defence of a Restrained Judicial Role – Lawrence H. Tribe

This is because a document would call for respect only if it deals with our fundamentals or core political values rather than some unimportant random clauses.Yet, even though the author address the issue of amendments’ appropriateness, he thinks that this issue should not be dealt with by the courts because this would subjugate the amending process to the legal system, which in fact it is supposed to over-ride and violate our principles of equal power to all arms of the State.Thus, it should be the legislature, rather than the judiciary addressing the question of whether an amendment is appropriate because these questions are “political questions that a constitution addresses via its political branch, subject to a review in some cases”.A reason as to why the judiciary sometimes abstains from passing judgements on the legitimacy of the substance of amendments and prefers the questions raised on the procedures s because that allows them to control the substantive parts only indirectly and in part.However, whether substantive or procedural, the courts by commenting on amendments impinge upon the independence of the legislature but more importantly go through the highly uncomfortable and controversial question of passing a judgement on amendments that are proposed to correct flaws in its own functioning.However, this doesn’t justify legislative plenary powers either.Thus, to solve the problem of judicial reviews on amendment procedures where the subject of the amendment may be related to the judicial functioning itself, the courts should be deferential (in case you are wondering, deferential means respectful) to the procedural provisions the legislature recommends in the resolutions calling for amendments.This deference should be equal to deference towards the procedural provisions mentioned within the proposed amendment’s text (don’t confuse this with the resolution) which if approved by Special Majority etc. are then rendered to be approved anyway. This would prevent sly behaviour on part of the legislature to get the judiciary to accept the procedural aspects of an amendment.