In a recent post to his blog, "A simple (and serious) puzzle for originalists",
Eric Posner states "All originalists acknowledge the “dead hand” problem, and so all agree
that the normative case for originalism depends on the amendment
procedure being adequate for keeping the constitution up to date."
First, this originalist does not acknowledge the "dead hand" problem, as
a general proposition. If a constitution is sufficiently well-written
at the outset there is not necessarily any need to amend it to keep it
"up to date". A constitution is written for human nature that has not
changed much in 40,000 years and won't change much until we genetically
engineer ourselves into having quite another nature.
Most of the demands to "update" the Constitution are demands to enable
redistribution of wealth, or to enable arrogant people who delude
themselves that they are capable of managing complicated systems if only
they are given powers to "make us better". Lots of luck with that.
Better not to let them try.
That is not to say that the U.S. Constitution could not use some amendments. I have proposed several. They fall into three categories. The clarifying
amendments are to overturn wrong court precedents. They add no new
powers or offices, and change no procedures. They would merely return us
to what was originally understood. The remedial amendments are
to correct some errors and omissions made by the Framers that they
should have made shortly after ratification, but didn't. The substantive
amendments would make structural and procedural changes, but mostly not
to redistribute wealth. Mainly to provide additional protections for
rights against the actions of officials.
Now we turn to the absurd arguments about voting rules. They are absurd
because the votes of human beings are not independent random events. If
they were law and government would be impossible. They are the result of
an equilibrium among competing diffusion processes.
A position in favor of some change initially develops among a few
people, then spreads to others, while a position in opposition to that
change develops in others and similarly spreads. Through public
deliberation a stable balance is eventually reached, perhaps after
decades, and if those favoring the change are sufficient in number, the
change is adopted.
Of course, even this model is somewhat oversimplified, because for
constitutional amendment to occur the balances must develop in each of
several states and in the Congress. The main obstacle is not, however,
the states, but Congress, if the amendment demanded would reduce their
claimed (but often unconstitutional) powers, as many of my proposals
would do. The main reason it seems so difficult to amend the
Constitution is that most of the impulses to do so would be attempts by
Congress to expand its power, generally at the expense of the states,
and the states not being willing to let that happen. That is not a
defect in Article V, but precisely the way it was supposed to work. The
defect, which I address in one of my amendments, is allowing Congress to
block amendments that would reduce its claimed powers. Since that is
what most of my proposed amendments do, it is highly unlikely Congress
would ever propose any of them to the states for ratification. From my
originalist standpoint, it is Congress that is the problem, not the
amendment process once the states get the proposed amendments.
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