Gore's "victims rights" amendment

[Bryan Wildenthal]

Fair points that Sandy raises, but in fact I think there are at least two
very compelling arguments (whether one calls them "legal" or "political" I
don't know -- what's the difference, some cynics would jibe) for a "don't
touch the Bill of Rights, never, no-how" philosophy (I leave aside amending
other parts of the Constitution -- personally I'd favor an amendment
abolishing the Electoral College, for example).

First, while the Bill of Rights as written certainly isn't perfect, it's
pretty damn good, and I have a dim enough view of the competence and
philosophical vision of our current political representatives to doubt that
anything they could come up with would be even close to as good.  I don't
find Sandy's example of Buckley v Valeo at all convincing.  I happen to
agree with Sandy that Buckley is very problematical (see Kennedy's excellent
dissent in the recent 6-3 campaign finance case) but there will always be
numerous Supreme Court decisions "wrongly" (in someone's view) interpreting
some part of the text of the Bill of Rights.  But tinkering with the text
will not in the long run reduce the number of such "mistakes," and would
generate more dangerous problems in turn (see second argument below).  I
think we have to trust/hope that the Court can/will eventually correct its
more serious interpretive mistakes.  I think the First Amendment law of
campaign finance remains quite unstable, and I would *much* rather the Court
continue its debate on the subject (and hopefully improve its
interpretation) than tinker with the admirably concise text of the First
Amendment.  Sandy's citation of the Second Amendment is cleverly
mischievous, but I say let the chips fall where they may on that one.  This
may shock my fellow "liberals" (in the current political sense), but
(without expressing a view on the merits of how to interpret the Second
Amendment) if an enforceable individual right to bear arms turns out to be
as well-founded as the First Amendment freedoms we hold dear, well, I'll
take 'em as a package deal, and would oppose any tampering with the Second
Amendment for fear that would endanger the First.

Second, once the can of worms of amending the Bill of Rights is opened,
where does it stop?  Every politician needing a campaign issue will be
clamoring to tinker with the Bill of Rights (probably in illiberal ways),
while claiming that he/she is only trying to "correct" some "mistake" of the
Supreme Court.  Every controversial Supreme Court decision will be viewed as
grounds for a proposed amendment.  I think there is *immense* value in
inculcating and maintaining a political culture that just says "hands off"
categorically to even venturing down that road.  I have found the Senate's
cliffhanger votes on the flag-burning amendment hair-raising for precisely
this reason (quite aside from my belief in the profound correctness, indeed
the poetic doctrinal beauty, of Texas v Johnson).  Bless the Framers for
that 2/3 requirement!

If all this amounts to "cheerleading for the Constitution," then hand out
the pom-poms, I plead guilty.  I honestly don't think it's likely that any
arguable improvement we could make at this late date (at least to the Bill
of Rights) would be worth the risk of re-opening unpopular but vital
individual rights that have withstood the ravages of politics for this long.
Remember those opinion polls in which large majorities of voters disagreed
with almost every Bill of Rights guarantee read to them?  Let's not even go
there, I say.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Friday, August 18, 2000 2:21 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Gore's "victims rights" amendment
> .....
> I think there are a number of good reasons to oppose the
> amendment (subject
> to the caveat that, like Bryan, I don't know its specifics),
> but I don't
> believe the fact that it "tampers" with the Bill of Rights is
> one of them.
> Isn't it possible that even the Bill of Rights might contain
> (at least) one
> "stupidity" that merits change?  I suspect that many of you
> on this list
> (by saying "you" I'm indicating my own uncertainty) would
> support repealing
> the Second Amendment as just such a stupidity (unless, as a matter of
> constitutional interpretation, you sufficiently "neutralize
> it" to make it
> irrelevant).  Or what about those who propose overruling Buckley by an
> amendment?  If one believes that Buckley is an incredibly
> stupid decision
> that has disserved the country and given us the present
> corruption of our
> electoral system, should one refrain from calling for an overruling
> amendment because it tampers with the First Amendment?  (Is
> the difference
> that most opponents of Buckley believe the Court was wrong in
> its view of
> the Amendment, so that it's not the First Amendment that's
> being tampered
> with, but, rather, the Court's mistaken interpretation?  But
> what if one,
> albeit regretfully, believes that the Court in fact got it
> right, or that
> it's mistake was only in upholding any of the 1974 Amendments
> rather than
> striking some of them down.  (At the time, at least, I would
> have joined
> Burger and Rehnquist in striking down every sentence of the
> legislation,
> though I've become more confused as to what kind of control
> of election
> finance I think is desirable and/or is constitutional.)
>
> Bryan's statement is only a more specific version of Kathleen
> Sullivan's
> argument that we really ought not support *any* amendments at
> all, that we
> are better off, all things considered, continuing to be
> cheerleaders for
> the Constitution we have rather than countenancing the suggestion that
> there are significant deficiencies that might merit
> amendment.  Again, one
> might ask if Dean Sullivan's argument is "legal" or "political."
>
> Sandy
>