Noah Feldman wrote in response to calls to amend the US Constitution to repeal or otherwise fix the second amendment. He makes an interesting point about antiquity serving to protect some rights. If some instance of government wanted to curtail certain rights, it would have to go through the amendment process (assuming it doesn’t just burn the Constitution—this only works for slow-moving evil). Even though valuing the older rules just because they’re older is in itself ridiculous, taking it as a value adds a line of defense to the older rules. So if the older rules are particularly good, then taking that value can be a good strategic move. The value does demand they be taken as a whole, though, so the ten amendments from 1791 come as a package deal.
Feldman seems to have some other motives in mind, though:
But amending the Constitution just because the Supreme Court may have taken its interpretation too far would undercut the very idea that the justices have the authority to interpret the Constitution to apply and expand basic rights. Live by the judicial interpretation, die by the judicial interpretation.
The interpretation is of existing legislation. What Feldman is proposing sounds like giving the court final authority on what ought to be done, rather than how to read the laws. Amending the Constitution because the court reveals the official reading says some undesireable things is completely respecting the idea that the justices have the authority to interpret the Constitution.
Take an analogous example to illustrate. Ava goes to the store with a 25% off coupon. Then she sees a rack of items for 30% off. She goes to check out expecting a 55% discount. But then it rings up with only a 47.5% discount. She asks what gives and the shopkeeper says the discounts are taken in succession, not added together. If she were to argue, that would be not respecting the interpretation of the shopkeep. If she acknowledges what the shopkeep says but then decides in light of the new information to change her action and not buy the item, then she’s respecting the interpretation.
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