Who Threatens Our Rights?

Philly Fed-Soc’ers Judd Serotta and Craig Hymowitz argue that  “activist” judges are a greater threat to the Bill of Rights than democratic majorities. 

The health of the Bill of Rights is tenuous because its traditional safeguard – the will of the majority – has been undermined by a judiciary that has arrogated to itself the authority to redefine these 10 amendments and the rights they protect.

The judiciary’s interpretation of the Bill of Rights was historically restrained by the country’s traditions and precedents. More recently, however, many judges are being driven by personal preferences and a sense that the meaning of the Constitution is theirs, rather than the people’s, to shape.

But we don’t need judges to keep the Constitution relevant. The Framers included a way to do that in the Constitution: an amendment procedure. They understood that just as the people approved the first 10 amendments, changing wisdom might recommend new amendments – or even repealing old ones. That was how the Constitution would remain an expression of the governed.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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