Russell Brunelle (russellb) wrote,
Russell Brunelle

Justice Antonin Scalia's recent Hoover Institution interview

Two months ago, Supreme Court Justice Antonin Scalia sat down for a lengthy interview with Hoover Institution fellow Peter Robinson. You can watch his interview in its entirety here, but it was what Justice Scalia had to say at 20:27 about amending the United States Constitution that I found the most striking:

"I'm sometimes asked if I would amend any provision of the Constitution, and actually the one provision I would amend is the amendment provision. It's very, very difficult to amend it --- infinitely more difficult than it was when that provision was written. It takes a 2/3 vote of each house to propose the amendment, and then it has to be approved by 3/4 of the states. I figured it out once; if you took a bare majority in the smallest states, in population, something less than 2% of the population could prevent a constitutional amendment. That's probably too severe, and certainly much worse than it was; you know, the disparity in population between California and Rhode Island is so much greater than what existed at the framing."

This is actually the main problem I have with originalism, as advocated by Justice Scalia and others; the only answer originalism's proponents can offer when society radically evolves is that the Constitution should be amended, but constitutional amendment of any kind (including amending the Article V amendment provision itself) is now effectively impossible.
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