Peer-Reviewed Journal Details
Mandatory Fields
Conor O'Mahony
2014
January
Harvard Human Rights Journal
If a Constitution is Easy to Amend, Can Judges be Less Restrained? Rights, Social Change and Proposition 8
Published
()
Optional Fields
27
191
242
To what extent does the counter-majoritarian difficulty become less of a concern when a majoritarian response to an unpopular court decision is readily available? Scholars have long debated the potential threat posed to democracy by court decisions that strike down legislation by reference to vague rights provisions, but this debate has largely taken place within a paradigm that assumes the extreme difficulty of amending the U.S. Constitution to overrule a decision of which the people disapprove. Far less attention has been given to the question of whether courts¿whether at the state level in the United States or at a national level elsewhere¿might justifiably adopt a more active and aggressive posture toward rights protection in jurisdictions where the constitution is easier to amend, and where a majoritarian response is a more realistic prospect in the event of a genuinely counter-majoritarian court decision. This Article will explore this question through the lens of the case law preceding and following the enactment of Proposition 8, which constitutionally prohibited same-sex marriage in California. The Proposition 8 cases are particularly suited to this task because they involve the resolution of one of the foremost constitutional rights controversies of our time in two very different systems: the U.S. federal system, where the Constitution is extremely difficult to amend, and California, where the constitution is extremely easy to amend. Drawing on the work of Alexander Bickel, this Article argues that as a constitution becomes easier to amend but still exhibits a reasonable level of entrenchment, some of the key arguments for judicial restraint in the interpretation of constitutional rights become less compelling. However, when an issue is the subject of intense political controversy and it is unclear whether a decision will be accepted by the people, a point is reached where extreme ease of amendment is itself a reason to favor judicial restraint.
Cambridge, Massachusetts
1057-5057
http://harvardhrj.com/wp-content/uploads/2014/07/V27_Mahony.pdf
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