On Oct 28, 2009, at 8:09 AM, Michael Pollak wrote:
> 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.
That's not really all of Dan's point. There's the goddamn Senate, which is a pox on the face of democracy. The Electoral College. The difficulties of amending the constitution, and the sacred reverence in which it's held. The excessive role of the states. Etc.
And the Supreme Court, almost by its very nature, is an elite institution designed to check the "desires," if you want to use Scalia's word, of the masses. There was the brief Warren era exception, but it's mostly been a tool of reaction.
Doug