Paul Krugman Agonistes


Paul Krugman is in a struggle to denounce everything Trump. Kavanaugh is his latest target.

Actually, I believe Krugman is right about Kavanaugh. Not that Kavanauigh will kill the Constitution all by himself. He will be helped along by Justices Alito and Thomas for sure, probably Gorsuch as well, and hopefully Roberts too.

Krugman probably didn’t mean it this way, but I think killing the so-called, “living Constitution’ is way overdue. It needs to have the life stamped out of it.  The concept of a living Constitution is a menace to a free society because a small handful of zealot judges can maneuver around its express provisions by making it say things that were never written into it.

The founders understood that some provisions of the Constitution would need to be changed in some future time. That’s why they provided a way for the Constitution to be amended. That is a process that requires agreement from a lot of people to accomplish. First, both houses of Congress must pass a resolution for a specific amendment. If it is passed by a 2/3 votes in both houses it will be submitted to the states. It must be ratified by 3/4 of the states in order to become an amendment to the Constitution. The President has no role to play in the amendment process.

In 1973 Justice Harry Blackmun, along with Burger, Douglas, Brennan, Stewart, Marshall, and Powell, decided that they didn’t want to wait for Congress to begin the process of amendment. That would mean a lot of the people in America would have to agree. Too messy, too uncertain, they thought. It needed to be done right then, they thought. So the found that abortion is a right guaranteed by the Constitution even though there is not a single word in the Constitution either for or against abortion as a right.

A living Constitution is a constitution that powerful judges can change based on nothing but their own personal whims.

If Roe v. Wade had gone the other way abortion would in all likelihood still be legal today. Several states had already adopted laws permitting abortion under certain circumstances. That process and debate would have continued until it coalesced into a form that would by now be well established and would not be controversial. It would be generally accepted because it would have been accomplished by allowing Americans to vote on it. The outcome of the vote would be palatable compared to the way it was simply shoved down everybody’s throat by seven old men in black robes.

Abortion was controversial in England in 1973. Parliament wisely decided it should be up to the people to vote on it. It was voted on, and is legal today under certain circumstances intended to prevent abortion from be used simply as birth control. if Parliament had simply passed a law legalizing abortion there would have been protests, perhaps violent. That’s so even though it would have been the people’s representatives changing the law. It was never going to be seven tired old men imposing their will on 65 million British subjects, as was done to 300 million Americans in 1973.

The result is that in Britain today abortion is legal in many cases and there is little or no conflict surrounding it. In America abortion has been a bone of serious contention, and pretty much remains so. All because a mere seven of our citizens decided they had the power to impose their will on everyone else, denying anyone else the right to express their own will at the ballot box.

So this one time I agree with Paul Krugman. Kill the living Constitution and give us back the real Constitution and restore respect for the rule of law in America.

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