A desperately needed Constitutional Amendment

[markpkessinger]

In light of the news that the Supreme Court is taking up a case involving a Missouri law that would effectively ban all abortions after 15 weeks, and which may enable the conservative majority to overturn Roe, I am beginning to think we need a constitutional amendment that reads something like:

"Rights extended under this Constitution, whether originally understood to have been included in the text of this document, as amended, or later deemed to have been extended by a decision of the United States Supreme Court, shall not be subject to rescission, limitation or restriction by subsequent Supreme Court decision, but shall be subject to rescission, limitation or restriction solely by amendment to this Constitution."

Why do I think this is necessary? Because it messes with people's lives to say, under one Supreme Court majority, that citizens have a particular right, and under another Supreme Court majority, that they don't. One thing I worry about, besides the effort to ban abortion, is the gay marriage decision, now that Anthony Kennedy is no longer on the Court. I wouldn't put it past this court to take a case challenging the gay marriage ruling, and the conservative majority to reverse it. And what would that do to the millions of LGBTQ+ couples who have already been married? When it comes to Constitutional rights, there simply must be some kind of reliable stability.

If we are true to our founding documents, we have no business restricting or rescinding rights, but only extending them. Something as fundamental as a Constitutional right should not be subject to the vicissitudes of changing Supreme Court majorities!

[MineralMan]

1. That would work, but it would also be impossible

to make happen in the current environment. Take a look at what is required for a constitutional amendment:

How is the Constitution amended?
Article V of the Constitution prescribes how an amendment can become a part of the Constitution. While there are two ways, only one has ever been used. All 27 Amendments have been ratified after two-thirds of the House and Senate approve of the proposal and send it to the states for a vote. Then, three-fourths of the states must affirm the proposed Amendment.

The other method of passing an amendment requires a Constitutional Convention to be called by two-thirds of the legislatures of the States. That Convention can propose as many amendments as it deems necessary. Those amendments must be approved by three-fourths of the states.

The actual wording of Article V is: “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 the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

https://www.lexisnexis.com/constitution/amendments_howitsdone.asp

[markpkessinger]

6. No doubt.

But somehow, I think we need to find a way to protect the progress we've made in civil/constitutional rights against the whims of a changing Supreme Court majority!

[MineralMan]

7. To do that, we need 2/3 majorities in both houses of Congress.

That should be our primary goal going forward. If we do not make it our goal, we'll get no such changes.

[markpkessinger]

9. +1 n/t

[pandr32]

12. +2

[RockRaven]

2. That would also mean gun control would never ever happen. Worse still, it would provoke

the cons on SCOTUS to gin up a decision which makes Heller look quaint by comparison, gutting every single gun control/restriction/regulation/monitor in the country, which would be impossible to fix.

Additionally it would make it impossible to roll back the pro-Xian-theocracy rulings the Roberts Court have issued -- more of which are coming every day -- which the Court portrays as "religious freedom" issues.

This proposal would create an impossible-to-remediate ratcheting towards the Christofascism the right wing is already pursuing so long as they couch their rulings in terms of freedoms.

[markpkessinger]

4. Good point . . .

. . . and perhaps it could somehow be tweaked to avoid that. But I stand by my assertion that fundamental rights should be safeguarded against the whims of changing Supreme Court majorities.

[librechik]

3. kill me now

[FBaggins]

5. No thanks

You're assuming that SCOTUS only ever makes things worse when they overturn previous precedent

So you think Dred Scott should still control?

[markpkessinger]

8. I'm not suggesting they be unable to overturn precedent . . .

I was careful in my language to limit it to "rights extended under this Constitution." I think, as a matter of principle, it should be easier to extend rights than it is to rescind them.

[FBaggins]

10. Sure you are

Scott was someone's property (a constitutional right)

More importantly... SCOTUS decisions often weigh clashes between constitutional rights on either side. Both sides will now be able to insist that you can't rule against them because doing so would conflict with this amendment.

[markpkessinger]

13. But Dred Scott wasn't overturned by a Supeme Court decision

Nor would a decision overturning it infringe on anyone's right to own property. Such a decision would merely have redefined what may legally be considered to be "property."

[FBaggins]

14. Doesn't matter. The principle is the same

Plenty of bad decisions are predicated on existing constitutional rights or rights that the court recognizes first in that ruling. Those bad decisions could no longer be overturned.

Do you agree with the recent 2A decisions? A new court filled with Biden appointees could no longer fix the problem.

[markpkessinger]

17. Name one instance in which a bad decision that extended rights . . .

. . . was overturned by a better, corrective decision that limited them.

[FBaggins]

20. Did you read what you replied to?

Many want the court to consider the Second Amendment to not guarantee an individual right. But for a new court to do so would be forbidden under your amendment.

[brooklynite]

19. People had "rights" under Plessy v. Ferguson ("separate but equal")

[markpkessinger]

30. And Brown v. Board of Ed. was not a rescission of those rights, but was rather an expansion n/t

[markpkessinger]

11. Also . . .

Dred Scott was not overturned by Supreme Court decision, but by the 13th and 14th Amendments. And in any case, even if it had been overturned by Supreme Court decision, Dred Scott held that African Americans "had no rights which the white man was bound to respect... ." So reversing it would not have represented a revocation of any previously extended right. Therefore, the hypothetical amendment I proposed in my OP wouldn't apply.

[FYI, actually Dred Scott has never specifically been overturned or repudiated by any ruling of the Supreme Court.]

[FBaggins]

15. Same problem as above

You're reading it as a lack of rights being replaced with a newly recognized right. But it's really a clash of rights where one is given priority over the other (in some or all circumstances).

[markpkessinger]

16. No, because there was never any right to own slaves . . .

. . . that was specifically granted in the Constitution.

[FBaggins]

18. You're going around in circles

There certainly were SCOTUS decisions that said it was a right.

And it was clearly implied in the constitution - which allowed the importation of persons.

[markpkessinger]

21. Name one . . .

. . . I'll be happy to wait.

There may have been a right to own property, but there has never been a Supreme Court ruling that anyone has a right to any specific type of property.

[FBaggins]

23. Like the one we're discussing above?

The decision ruled that he was property. There is nothing else that can be "imported" or "sold"

[markpkessinger]

26. Dred Scott recognized that under the then-prevailing law . . .

. . . Dred Scott was the lawful property of defendant John Sandford. It merely assumed that persons classified as slaves were lawful property6. But it did not declare a specific right to own that property, but merely7 held that the defendant did own such property.

But all this going back and forth is hypothetical in any case, and misses my central point. Dred Scott was not overturned by any decision of the Supreme Court, but by Constitutional amendment (13th and 14th).

So again, I challenge yo9u to name any Supreme Court decision that declared an affirmative right to own slaves.

[FBaggins]

27. Flatly incorrect

Again... try reading it rather than a Wikipedia summary.

[markpkessinger]

22. And I am not going in circles at all . . .

. . . You have asserted a claim that the Supreme Court specifically declared a right to own slaves. I'm asking you to back up that claim. How is that going in circles?

[FBaggins]

25. You might try reading the ruling we've been discussing before embarrassing yourself further?

Exerpt (empahsis mine):

Now, as we have already said in an earlier part of this opinion upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States in every State that might desire it for twenty years. And the Government in express terms is pledged to protect

it in all future time if the slave escapes from his owner. This is done in plain words -- too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.

[markpkessinger]

28. Fair enough, and I concede your point

But it is still irrelevant, because Dred Scottl was never overturned by any decision of the Supreme Court.

[FBaggins]

29. Of course it's relevant

You're still saying that bad decisions like that could not be fixed by later courts. The fact that this one was overturned a different way does nothing to reduce that point. Do you really want to say that such bad decisions must be fixed by amendment?

You've also been provided with Brown v. Board of education overturning Plessy v. Ferguson


There are lots of similar examples. Because (as I've said multiple times) SCOTUS cases very often weigh one right against another.

[markpkessinger]

31. Brown v. Board of Ed. didn't rescind rights; it expanded them n/t

[FBaggins]

32. Sigh... this is the point you simply aren't getting

You see a case that you agree with and all you see is the good right that they recognize/expand/create. While not seeing the rights that are reduced/denied/superceded.

How can you see Plessy as anything other than a ruling that whites have a right to receive separate accommodations (train cars, schools, water fountains)?

[markpkessinger]

33. And btw . . .

. . . I started this thread in an effort to open a good faith discussion of the problem of constitutional rights being subject to the whims of a changing Supreme Court majority. There are undoubtedly some problems with my hypothetical amendment, although we may disagree on what the specific problems are. But I think it's rather uncalled for to assert that I am "embarrassing [my]self." I have been nothing but respectful to you throughout this exchange.

[keithbvadu2]

24. When arguing the constitution on social media:

When arguing the constitution on social media:

1. Whatever is not specifically allowed must be forbidden. If this logic supports your premise.

2. Whatever is not specifically forbidden must be allowed. If this logic supports your premise.

[roamer65]

34. It would need 38 states to ratify it.

I wouldn’t see that happening. There are more than 12 red states that would block it.