Many of the Court's most celebrated decisions, even those striking down legislation, reflected the views of current political majorities.And this:
Note that I am not attempting to defend the Court's decisions. I am simply remarking the fact that they are far less countermajoritarian than is often claimed.
These quotes are part of his discussion of the point that
the meaning of the document [Constitution] changes over time, and these changes usually arise from alterations in social values.I think the idea is that the Supreme Court has in fact changed the meaning of the Constitution over time, and that even so, these changes have reflected changes in social values as reflected in current political majorities. It seems to me Professor Sunstein is not concerned by the Court's changes to the Constitution. I am.
Consider what our written Constitution says about changing it:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress. . . . .It seems to me that according to our written Constitution current political majorities are not supposed to be sufficient to amend the Constitution. The Constitution requires a super-majority of both houses of Congress, and then a super-majority of the states as well, before the Constitution is amended.
Isn't there something important about the super-majority requirement? I think that requiring a super-majority means that amendments to our actual written Constitution will be much more likely to be in the interest of most people, relative to a simple majority requirement. Just imagine getting 2/3 of the Senators to agree today on a proposed amendment to the Constitution. Right now the Senate cannot even get 3/5 of the Senators to support ending debate on one judicial nomination. What kind of proposed amendment could get the required 2/3 affirmative votes? Wouldn't the change have to very likely be in the interest of most people? A similar set of questions would apply to getting 3/4 of the states to ratify something, given the distribution of states between democrats and republicans.
While Sunstein may be correct in saying the the Court's changes to the meaning of the Constitution were consistent with current political majorities, my guess is that only a few of the Court's changes would have be supported by the super-majorities required by our written Constitution. Do you agree?
Are your comfortable with our written Constitution and the super-majority requirements to amend the Constitution? Or do you think we should see if we can amend the Constitution to require only a simple majority vote to approve proposed amendments? Would you consider amending the Constitution to allow the Supreme Court to amend the Constitution by a 5-4 vote, assuming that the Court sees its role as representing only changes in social values when it does so?