Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

Chapter 2
The Question of Justiciability-- Which Branch of Government Should Have the Ultimate Say Over Issues Involving the Amending Process?

In choosing to be governed by a Constitution, the American Framers eschewed many of the more embracive claims for social and economic rights that were to be advanced in a number of constitutions in the next century, preferring to limit their claims to political rights which could in turn be enforced in courts of law. 1 One can certainly take exception to some of the implications of Justice William Howard Taft's statement that "we are under a Constitution, but the Constitution is what the Court says it is." 2 Nonetheless, in legal terms, at least, it is fair to say that where there is no legal remedy, there is no legal right. Thus, had the United States not developed the institution of judicial review, few constitutional rights would be worth more than the paper on which they are written.

Of course, the Constitution does much more than limit rights through a series of negative prohibitions. Much of the support the Constitution provides to liberty stems rather from the system of separation of powers which attempts to provide checks and balances against abuses of any of the three main branches of government. 3 Thus, for example, both the division of Congress into two houses and the presidential veto are designed to prevent improvident and unwise legislation, while the possibility of impeachment is a protection against executive and judicial excess.

According to Article III of the U.S. Constitution, the judicial power extends to all cases arising under the laws and/or the Constitution of the United States. In recent times, this power has become broad indeed, and today, as in Alexis de Tocqueville's time, there are few political issues that do not eventually become legal issues. 4 Nonetheless, not only have judges and justices often made note of the difference between that which is illegal and that which is unwise but the courts have also designated certain ques-

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