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Comment by dctoedt

3 days ago

> The constitution embodies a particular set of moral and political philosophies. Sometimes we add more (e.g. the concept of equal protection). But judges don’t get to be philosophers weighing in on moral issues the framers of the constitution and amendments clearly didn’t contemplate.

I'd agree with you — if we had more than one, largely-sclerotic way of amending the Constitution to accommodate new realities and new insights. "The only constant is change" is apparently a misattribution to Heraclitus [0], but it obviously has struck a chord to be in such widespread circulation.

Judicial lawmaking is a kluge, certainly. It brings to mind a passage in Tracy Kidder's 1981 The Soul of a New Machine: A "kluge" is like a wheel made out of bricks: No engineer would be particularly proud to have designed it — but if you need a wheel, and bricks are all you have to work with, then that's what you use.

In any case: Judicial lawmaking has become more-or-less accepted. You're part of the "or less" crowd, clearly. But ISTM that judicial lawmaking is a case of the (mythical) perfect being the enemy of the good-enough.

(A possible improvement: Congress could cabin the judicial-lawmaking process by stating — under the Exceptions and Regulations Clause in Article VI — that a 3/5 majority in each chamber, and perhaps presidential acquiescence, can override any SCOTUS pronouncement about constitutionality. And maybe impose a fast track for legislation to overturn a judicial interpretation of a statute. Both would be roughly akin to the Congressional Review Act for overturning administrative-agency decisions [1].)

[0] https://euppublishingblog.com/2021/07/19/misunderstanding-of...

[1] https://www.congress.gov/crs-product/IF10023