On Wed, 28 Oct 2009, shag carpet bomb wrote:
>> And if you read the Federalist Papers it is very clear that such
>> constraint on popular will was the first and last goal of the designers.
>> Everything else was mere mechanics.
>
> Doug, isn't that the point you always make about your friend's book on
> the Constitution? The entire system of checks and balances was designed
> to both allow factions (both minority and majority) to flourish and then
> contain and constrain them.
FWIW, IMHO, the debate about whether buttsex is a right actually points out one of the big problems with the Lazare view. What really made the constitution "frozen" isn't checks and balances. It's rather the opposite. What froze the constitution was John Marshall's invention of judicial review and the idea of judicial supremacy -- the idea that the Supreme Court is the branch with power to settle disputes over whether something is constitutional.
The checks and balances ideas is exactly the opposite. It's that such dispute are by nature never settled. It's that no branch has the final word. Each branch has a co-equal power of constitutional review (which is a broader idea than judicial review). And the end result can only be settled by a matter of political struggle.
Another irony for Lazare's view is the freezing of the constitution into a document of law rather than politics, and the elevation of the aristocracy of judges to defend it, was all the result of a very open Federalist conspiracy after they lost the 1800 election. And the chief guy who was against all this, and went to his grave denouncing judicial review as violating the essence of democracy, politics and the what the founders intended in the constitution, is Lazare's favorite whipping boy, Jefferson.
Michael