The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.
But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court. Fair enough. Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.
First over the side is the Fourth Amendment exclusionary rule. Miranda is next.
Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify. Have you seen the prosecutor's closing argument in the BBC series Broadchurch? Great fun. Don't try this at home. Almost makes you want to move to England. Except for the wigs.
"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?Is amending the Bill of Rights fair game? How about getting rid of the defendant's privilege not to testify in a criminal case? Can we give it the heave-ho? Probably not.
But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court. Fair enough. Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.
First over the side is the Fourth Amendment exclusionary rule. Miranda is next.
Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify. Have you seen the prosecutor's closing argument in the BBC series Broadchurch? Great fun. Don't try this at home. Almost makes you want to move to England. Except for the wigs.
"But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court. Fair enough."
This seems very ill-considered. The law at stake in CU would criminalize certain types of political speech. Those who want to overturn CU want to criminalize speech and put a determination of which speech is criminal into the hands of people who think that Fox News should be punished for holding a presidential debate. At heat these people are censors, and "fair enough" gives far too much quarter for these illiberal statists.
By "fair enough" I simply mean that I accept that people may fairly disagree as to whether Citizens United was a correct interpretation of the First Amendment. CJLF takes no position on the issue, and I won't be expressing an opinion on this blog.
Kent: I am a bit confused by this post. Are you saying there are certain parts of the constitution that are somehow immune from possible amendment? I do not understand this notion --- I always understood that the (difficult) amendment process was precisely the way in which US citizens/voters/representatives could andshould seek to overturn any interpretations of the constitution that did not have any significent enduring support of US citizens/voters/representatives.
In other words, I think it would be 100% appropriate for Trump or others to urge a constitutional amendment to overturn the Fourth Amendment exclusionary rule and/or Miranda. Indeed, I would much prefer the candor/philosophy of any candidate/advocate who accepts the basic legitimacy of rulings like Miranda or Roe or CU or Heller and then says the right way for these decisions to be undone is through the constitutional amendment process (rather than by, say, appointing justices who will eagerly/readily reverse these rulings the first chance they get without the obvious support to US citizens/voters/representatives).
I raise this point in part because I have long thought hard-core death penalty opponents could/should/must seek constitutional abolition of the DP via the amendment process rather than seeking to pack the High Court with 5 justices eager to do a kind of constitutional amendment by judicial fiat.
I fully understand why you (and federalist) and others may think constitutional amendment to overturn CU is a bad idea. (I think it likely would be, too, though I would need to see proposed amendment language before coming to a firm judgment.) But I am actually encouraged that Clinton is proposing constitutional amendment as her chosen method of overturning CU rather than simply promising to appoint justices who will reverse it.
"Indeed, I would much prefer the candor/philosophy of any candidate/advocate who accepts the basic legitimacy of rulings like Miranda or Roe or CU or Heller and then says the right way for these decisions to be undone is through the constitutional amendment process (rather than by, say, appointing justices who will eagerly/readily reverse these rulings the first chance they get without the obvious support to US citizens/voters/representatives)."
Miranda is legitimate? Maybe--but as Scalia's dissent in Dickerson showed, the Miranda regime is not. It is not inappropriate to "pack" the court with five justices that would overturn the Miranda regime. And Doug, do you really think that Hillary is not going to nominate people who WOULD overturn CU and pave the way for criminal prosecution of political speech? Hillary is serving up red-meat--her chosen method remains appointing people who will overturn CU. You are being naïve.
Legally, the only provision of the Constitution immune from non-unanimous amendment is the equal representation of the States in the Senate. See Article V, last clause.
Politically, though, I have always thought the Bill of Rights was considered sacrosanct so that people would be aghast at the thought of amending it, even to correct an obvious oversight such as the fixed $20 limit for federal civil jury trials. That is why I was surprised to see a major party presidential (presumptive) nominee opening advocating amending the Bill of Rights. And once more, with feeling, I am not taking a position on Citizens United. It is ultra vires.
The very difficult amendment process can be used to overturn incorrect judicial interpretations of the Constitution, and it has been so used several times, but I do not agree that it should be the only way. If it were, Hammer v. Dagenhart might still be the law.
The amendment process was made very difficult to prevent ill-considered changes in the Constitution due to passing tempers. Restoring the real Constitution as originally agreed upon should be easier.
The Supreme Court can and should correct its own errors. Presidents can and should consider fidelity to original understanding and commitment to judicial restraint in nominating justices, and the Senate can and should consider these matters in confirming them.
In severe cases, that includes a willingness to overrule precedents. Judges should not amend the Constitution by judicial fiat, but they should be open to restoring the Constitution as the people agreed to it by revoking prior fiats. I don't contend that a justice who concludes that a decision was incorrect when issued should always vote to overrule it. There is something to be said for Chief Justice Rehnquist's opinion in Dickerson, but that door should not be permanently blocked.
I certainly do sense folks on the right would be "aghast" at the thought of constitutional amendments to overturn Bill-of-Rights-based decisions they find problematic like Miranda or Roe or Texas v. Johson or some recent 8th A rulings like Roper ot Kennedy. (Indeed, I continue to be surprised that there has not been more concern expressed by folks on the right about Donald Trump's various statements that he wants to change the law in ways that would seem obviously to contravene Bill-of-Rights rulings in cases like NYT v. Sullivan and Woodson/Roberts.)
Correspondingly, folks on the left talk aplenty about amendments to overturn not only CU but also Heller and a handful of other more recent Bill-of-Rights-based decisions they find problematic.
That all said, I think you and federalist bring up good and nuanced points here: e.g.,
1. Hillary is definitely talking up an amendment to reverse CU because CU has become now (foolishly, in my view) a focal point for progressive who now (foolishly, in my view) think big-monied interests now dominate our political processes. And I am sure she will nominate Justices inclined to view CU as illegitmate. But, still, I think the very fact that Hillary is asserting that an amendment is the route for overturning CU provides a great talking-point for folks on the right (and in the Senate) for saying that the leaders of the Ds is now, at least tacitly, admitting that CU is good law unless and until the people amend the Constitution.
2. When and how a new Justice should show respect to "bad" old decisions or advocate for their reversal ASAP is one of the great hard questions in constitutional law --- and it is one made even harder by the (I think unfortunate) fact that constitutional amendments have proven so very difficult in modern times. If the amendment process was just a bit easier, I would want justices to be even more restrained in reversing what they see as bad decisions because the people would be able to do so more directly and with greater democratic legitimacy.
Not too much disagreement there.
A presidential candidate who talks of unilaterally changing Woodson/Roberts is merely foolish, not scary, as there is no chance he could actually do so.
BTW, Woodson left open the possibility that a mandatory death penalty might be allowed for a second conviction of murder. That door was shut later in Sumner v. Shuman (1987). That case was wrongly decided, IMO, and should be overruled. Life-sentenced murderers should know that they are not judgment-proof for another killing within the prison, after escape, or arranged on the outside from within prison. Rather, they will move swiftly through guilt-only trial, guilt-only appeal, and execution.
I agree with your last point. The great difficulty of amending the Constitution was probably appropriate in 1787, but it is excessive now. Easier amendment would reduce the demand for judicial activism. It would also make the composition of the Supreme Court less critical and possibly tone down the partisanship of the nomination/confirmation process.
Doug, Hillary's invocation of the amendment process is an example of how strongly she feels that government gets to police political speech--it's not a tacit admission that CU is legitimate, and it's not really a talking point either for the GOP (note, BCRA was just that, bi-partisan). There are almost certainly four votes to overturn CU on the Court right now, and you can bet your bippie that if she gets to nominate anyone, that person will vote to overturn CU.
Your original comment about Hillary's philosophy on precedent was naïve.
Kent, I don't think there's much to say for Rehnquist's approach. The Court, on its face, is arrogating to itself an unconstitutional power. That is a large price to pay for keeping the Miranda warnings.
federlist, because I never made a comment "about Hillary's philosophy on precedent," I struggle to understand how I made a comment that was naive.
Here is what I said: "I am actually encouraged that Clinton is proposing constitutional amendment as her chosen method of overturning CU rather than simply promising to appoint justices who will reverse it." The reason I am encouraged is not because I have some view about "Hillary's philosophy on precedent" --- indeed, I struggle to make sense of HRC having a "philosophy" about anything other than a driving desire to be Prez. Rather, the reason I am encouraged, and also the reason I chimed in in this thread, is because I think it would be much healthier (and much more in keeping with foundational constitutional principles) for political candidates to seek to change established constitutional by openly building the case for an amendment rather than by openly talking about stocking the court with Justices who will seek to overturn the precedents they do not like.
I make this point particularly because I think the rule of law depends, at least in part, on judges and others showing at least some "rule of law" respect for even those precendents they dislike. In my opinion, it would be harmful for all of our legal institutions if each election cycle candidates were regularly citing to precendents they do not like and were promising to appoint judges who would be committed to overturning those precendents. Ergo, the fact that Clinton is talking about using the Constitution's own explicit means to change its meaning struck me as an "encouraging" development in the public dialogue. For the same reason, I would be "encouraged" to hear Trump say he would be eager to propose a constitutional amendment to allow the mandatory death penalty for cop killers rather than to hear him say he is committed to appointing justices who will overturn Woodson and Sumner.