ERDMANN TSDC CONCON CP

CONGRESS CPCONGRESS CP...............................................................................................................................1NEGATIVE EXT..............................................................................................................................2

Congressional Amendment 1NC..............................................................................................3Solvency......................................................................................................................................4Net Benefit..................................................................................................................................5Congress > Supreme Court......................................................................................................7Congress > President...............................................................................................................11Amendment Solvency..............................................................................................................13Net Benefit Extensions............................................................................................................18

AFFIRMATIVE..............................................................................................................................21Congressional Amendment Answers.....................................................................................22XO 12333 Answers..................................................................................................................26

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ERDMANN TSDC CONCON CP

NEGATIVE EXT

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ERDMANN TSDC CONCON CPCONGRESSIONAL AMENDMENT 1NC

PLAN: THE UNITED STATES CONGRESS SHOULD CREATE AND PASS A CONSTITUTIONAL AMENDMENT CURTAILING DOMESTIC SURVEILLANCE IN THE UNITED STATES.

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ERDMANN TSDC CONCON CPSOLVENCY

A) A CONSTITUTIONAL AMENDMENT FOR SURVEILLANCE KEY TO PROTECTING PRIVACY. Alben 2015 (Alex Alben is an author and technology policy expert. He lives in Seattle and currently lectures on privacy in the digital age for Humanities Washington. April 14, 2015 http://www.seattletimes.com/opinion/how-to-protect-privacy-in-the-digital-age-a-constitutional-amendment/)Our state and federal courts should not have to infer privacy rights derived from the Third or Fourth amendments, nor be limited to making narrow rulings based on narrow precedents. Isn’t it time, 223 years after the original Bill of Rights, to emphatically establish the protection of the privacy of American citizens as a starting principle for our law and civil society? In short, the abuses of power of the federal government and the unrestrained data-collection practices of modern culture argue for a new amendment to the Constitution that explicitly protects our privacy. With privacy as a starting point, courts and legislatures could then evaluate public-safety and national-security exceptions to a general pro-privacy bias. The onus, in short, should be on government to prove its right to our personal data and not on citizens to attempt to stop complex and rampant data-interception practices. Our Bill of Rights was not perfect and our Constitution has required amendments of various degrees of gravitas over two centuries. First introduced in September of 1789 as part of the Bill of Rights package, the most recent amendment — pertaining to congressional salaries — was not ratified until 1992. Given the new consensus around privacy rights and the accelerating pace of technical change, we should ask our members of Congress to secure the two-thirds votes of both the U.S. House and Senate to propose an amendment to the Constitution to safeguard privacy as a first principle of American law.

B) A CONSTITUTIONAL AMENDMENT FOR SURVEILLANCE IS NECESSARY. Rosen 14 (Jeffrey Rosen is the president and chief executive of the National Constitution Center. professor of law at George Washington Law School. Legal affairs editor of The New Republic. January 18th, 2014 Madison’s Privacy Blind Spot http://www.nytimes.com/2014/01/19/opinion/sunday/madisons-privacy-blind-spot.html?_r=0)What Americans may now need is a constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T. Perhaps even Madison, who unsuccessfully proposed a preamble to the Constitution declaring “that all power is originally rested in, and consequently derived from the people,” and that all people have basic natural rights, including “the enjoyment of life and liberty” and the right of “pursuing and obtaining happiness and safety,” might have realized that our rights to enjoy liberty, and to obtain happiness and safety at the same time, are threatened as much by corporate as government surveillance. In any event, it is clear that, to keep us secure against the 21st-century version of the general warrants that so alarmed Madison and the other founders, America needs a robust debate about amending the Constitution to meet the exigencies of our electronic age.

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ERDMANN TSDC CONCON CPNET BENEFIT

A) CONSTITUTIONAL AMENDMENTS ARE CRITICAL TO AMERICAN DEMOCRACYPresser 2000 <Stephen B. (Raoul Berger Professor of Legal History, Northwestern University School of Law, and Professor of Business law, Kellogg Graduate School of Management and Strategy, Northwestern University), Texas Review of Law & Politics, “Constitutional Amendments: Dangerous Threat or Democracy in Action?” Fall 2000, lexis>V. Conclusion and Recommendation I agree with the argument of the authors of the Guidelines that constitutional amendments ought to not only be a product [*223] of thoughtful discourse, but also subject to some restraint, but I do fundamentally differ with them over the character and providence of constitutional amendments. The authors appear to see them as a dangerous threat to American liberty and democracy. I see them as precisely the opposite. Many years ago, Learned Hand warned that it was not good for American democracy or for our society to be governed by nine unelected Law Lords, or, as he called them, "Platonic Guardians." n64 He recognized that the future of our Republic hinges on the participation by the American people in politics. n65 The authors of the Guidelines are correct to emphasize that legislation is important, and that most political disputes are probably properly settled by election or by legislation. Nevertheless, there are some fundamental disagreements about the nature of society best resolved through constitutional amendments, particularly where the Supreme Court has wrongly read the Constitution and sought to move the country in the wrong direction. The Reconstruction Amendments, for example, accomplished such a resolution and altered constitutional law in a fundamental manner. Given the highly contentious atmosphere in which the Reconstruction Amendments were passed, they might be considered products of coercion rather than a "full and fair debate on the merits." n66 It is doubtful that they would have met the standards specified in the proposed Guidelines. n67 [*224] The authors of Great and Extraordinary Occasions have quoted Thomas Jefferson's language in the Declaration of Independence that "governments long established should not be changed for light and transient causes," implying that even though he was "more friendly to constitutional amendments than many of the Founders," he would hesitate about constitutional amendments that arose from "transient" concerns. n68 But in the Declaration, of course, Jefferson was speaking of a change from one government to another - from that of the British Empire to that of the American people themselves. His words in the Declaration tell us nothing about individual constitutional amendments, just as Madison's in Federalist No. 49, from which the title of Great and Extraordinary Occasions is taken, were concerned with a different problem. Indeed, Thomas Jefferson, in a famous letter, set forth his belief that a rebellion every twenty years or so would be the best thing for America, since "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." n69 We do not need to go quite that far, but if the Constitution is failing to meet the needs of the people, some attention to constitutional alteration every couple of decades cannot help but remind the American people that it is their Constitution and their responsibility to make sure that it does what it should. The process of constitutional amendment was constructed as a means of ensuring that revising the Constitution would be the result of discussion and dialogue between and among the two branches of the federal legislature and the people of the individual states, acting through their legislatures. The process of constitutional amendment is perhaps the highest exercise in participatory democracy, and while it is a solemn one, it is not one that should be discouraged in the manner that the authors of Great and Extraordinary Occasions seek to do.

B) AMERICAN DEMOCRACY IS MODELED WORLDWIDE – IT’S KEY TO SOLVE A HOST OF PROBLEMS INCLUDING GLOBAL WAR

Ikenberry 99 John G. Ikenberry, professor of political science at the University of Pennsylvania and nonresident senior fellow at the Brookings Institution.; Spring 1999 Washington QuarterlyThis "hardheaded" view, however, is a misreading of both past and present. The American promotion of democracy abroad, particularly as it has been pursued since the end of World War II, reflects a pragmatic, evolving, and sophisticated understanding of how to create a stable and relatively peaceful world order. It amounts to what might be called an American "liberal" grand strategy. It is a strategy based on the very realistic view that the political character of other states has an enormous impact on the ability of the United States to ensure its security and economic interests. It is also an orientation that unites factions of the Left and the Right in American politics. Conservatives point to Ronald Reagan as the great Cold War champion of the free world, democracy, and self-determination - but rarely recognize him as the great Wilsonian of our age. Liberals emphasize the role of human rights, multilateral institutions, and the progressive political effects of economic interdependence. These positions are parts of a whole. Although "realist" critics and others complain about drift and confusion in U.S. foreign policy, it actually has a great deal of coherence. The American preoccupation with promoting democracy abroad fits into a larger liberal view about the sources of a stable, legitimate, secure, and prosperous international order. This outlook may not always be the chief guiding principle of policy, and it may sometimes lead to error. Still, it is a relatively coherent orientation rooted in the American political experience and American understandings of history, economics, and the sources of political stability. It thus stands apart from more traditional grand strategies that grow out of European experience and the so-called realist tradition in foreign policy, with its emphasis on balances of power, realpolitik, and containment. This distinctively American liberal grand strategy is built around a set of claims and assumptions about how democratic politics, economic interdependence, international institutions, and political identity encourage a stable political order. It is not a single view articulated by a single group of thinkers. It is a composite view built on a variety of arguments by a variety of supporters. American officials laid the foundation of a liberal democratic order on principles of economic openness, political reciprocity, and the management of conflicts in new multinational institutions. The realities of the Cold War soon overpowered the thinking of American officials, however, and after 1947 the doctrine of containment - with its rousing urgency and clarity of purpose - soon east liberal internationalism into shadow again. But the principles and practices of Western order came earlier and survived longer. Today, in the aftermath of the Cold War, the five chief elements of liberal grand strategy are again re-emerging in a clearer light. The Amity of Democracies: Woodrow Wilson was probably the purest believer in the proposition that democracies maintain more peaceful relations, and his great optimism about the prospects for democracy around the globe after World War I accounts for his exaggerated hopes for world peace. "A steadfast concert of peace can never be maintained except by a partnership of democratic nations. No autocratic government could be trusted to keep faith within it or observe its covenants," he declared in 1917. Wilson's claim was only the most emphatic statement of a long tradition in American diplomacy holding that the United States will be able to trust and get along best with democracies. This was the view, for example, that largely inspired the U.S. effort to remake Japan and Germany along more democratic lines after World War II. In the minds of the era's American leaders, including President Truman, the

fundamental cause of both world wars was the rise of illiberal, autocratic states. Scholars have identified a number of reasons for the general

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ERDMANN TSDC CONCON CPamity of democracies. They point out that elected legislatures and other democratic structures often limit the ability of leaders to mobilize societies for war, that the norms of peaceful conflict resolution that democracies develop at home carry over into foreign dealings, and that democratic institutions generate more honest and reliable information about government intentions than nondemocracies do. And because democracies are built on shared social purposes and a congruence of interests, these scholars add, such societies generally limit the rise of conflicts strong enough to lead to war. Out of the postwar experience has come another layer of understanding about the importance of democracy. These new insights are not woolly-headed notions about the brotherhood of all democracies but hard observations about the mechanics and principles that govern the affairs of nations. Not only are democracies more peaceably inclined toward one another, they are also better suited to making international agreements and international institutions work. Why? Their success is not just a product of some ineffable trust. It occurs because they are accustomed to relations based on the rule of law rather than on political expediency, and because their openness provides their potential international partners with a set of something like verification tools. The partners can see their internal workings and judge for themselves whether promises and commitments are being kept. They can even hope to influence the other's policies. And they can be assured that the complicated political life of a democracy makes abrupt and unwelcome changes of policy unlikely. This conviction about the value of democracy runs through much American foreign policy thinking in the 20th century. In 1995, Anthony Lake, then director of the National Security Council, declared: We led the struggle for democracy because the larger the pool of democracies, the greater our own security and prosperity. Democracies, we know, are less likely to make war on us or on other nations. They tend not to abuse the rights of their people. They make for more reliable trading partners. And each new democracy is a potential ally in the struggle against the challenges of our time-containing ethnic and religious conflict; reducing the nuclear threat; combating terrorism and organized crime; overcoming environmental degradation.

C) DEMOCRACY SOLVES WAR AND EXTINCTIONCarnegie Commission on Preventing Deadly Conflict, October 1995, “Promoting Democracy in the 1990’s,” http://www.carnegie.org//sub/pubs/deadly/dia95_01.html, accessed on 12/11/99OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.

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ERDMANN TSDC CONCON CPCONGRESS > SUPREME COURT

AMENDMENTS CAN OVERTURN SUPREME COURT DECISIONSVILE 92 (John, R., THE CONSTITUTIONAL AMENDING PROCESS IN AMERICAN POLITICAL THOUGHT, Questia)By this point in this book, it should be apparent that certain constitutional understandings can be formally changed by amendment or be changed less formally, albeit often no less effectively, by presidential and congressional practices and judicial interpretations. Given the Court's special authority "to say what the law is," 1 its role has been a particularly important one. The more expansive role the courts take in interpreting and adapting the Constitution to new exigencies, the less need there is for constitutional amendment, except perhaps as a way of reversing overly broad Judicial opinions. Contrariwise, the less the courts adapt the Constitution to changing times, the greater may be the need for amendment. It is this recognition that is implicitly behind the modern debates over a jurisprudence of original intent, 2 and over the respective merits of judicial activism and judicial restraint . 3 However contemporary such debates may be, the issues about which they revolve are old ones.

TURN- SUPREME COURT RULINGS ARE ILLEGITIMATE AMENDMENTS TO THE CONSTITUTION.Presser 2000 <Stephen B. (Raoul Berger Professor of Legal History, Northwestern University School of Law, and Professor of Business law, Kellogg Graduate School of Management and Strategy, Northwestern University), Texas Review of Law & Politics, “Constitutional Amendments: Dangerous Threat or Democracy in Action?” Fall 2000, lexis> [*213] When the first ten Amendments, now known as the Bill of Rights, were passed a scant two years after the adoption of the Constitution, n14 it demonstrated that amendments were possible. Since then, however, it has been difficult to achieve constitutional amendments: only seventeen have been passed since 1791. n15 The first two of these seventeen were ratified relatively soon after the first ten, in the late eighteenth and early nineteenth centuries, respectively. n16 The aftermath of the Civil war resulted in passage of the next three Amendments: one prohibiting slavery, n17 another guaranteeing the freedmen the right to vote, n18 and a third restricting the states from interfering with due process, the privileges and immunities of United States citizens, or the equal protection of the laws. n19 This last Amendment, as interpreted, has fundamentally altered the balance struck by the original document in the allocation of power between the state and federal governments. n20 Since 1971, however, no new amendment proposals have succeeded, although the nation has been through some of the most [*214] profound economic and cultural changes in its history. n21 No serious student of constitutional development, however, would claim that constitutional law has not changed during that period. Rather, through the interpretation of the Commerce Clause and the Fourteenth Amendment, the United States Supreme Court has, in effect, repeatedly amended the Constitution. n22Amendment by the Supreme Court was definitely not the method prescribed by the Framers, nor is it the method set forth in Article V. Indeed, one of the most powerful criticisms levied against the new Constitution in the late eighteenth century was that the federal judiciary would be too powerful and would take it upon itself to make laws for the nation. n23 Such criticism has proven prescient. The choice we face today is whether future constitutional change, which is, after all, inevitable in a changing republic, will be done illegitimately by a Supreme Court or legitimately through the means specified in the Constitution.

AMENDMENTS CAN OVERTURN THE SUPREME COURTSchaffner 2005, American University Law Review, Associate Professor of Law, George Washington University Law SchoolBecause the judicial branch has the ultimate authority over constitutional interpretation and construction, the only "check" on judicial power of constitutional interpretation is the constitutional amendment process. The amendment process should be used to overturn the Court only when it acts beyond its powers or inconsistently with constitutional principles. Otherwise, the careful balance of powers among the branches is compromised. The history of amending the Constitution to overrule Supreme Court decisions is consistent with this view and is particularly relevant here. While the U.S. Supreme Court is not being overturned by the FMA, the Massachusetts Supreme Judicial Court's Goodridge decision is in jeopardy. Goodridge was the catalyst for the fervor behind the proposed marriage amendment. Moreover, the FMA will forever prevent the U.S. Supreme Court from addressing the issue. Only four constitutional amendments have been adopted to overrule the Supreme Court. n186 They are: (1) the Eleventh Amendment, which overruled Chisolm v. Georgia; n187 (2) the Thirteenth Amendment and, most specifically, the first sentence of the [*1519] Fourteenth Amendment, n188 which overruled Dred Scott v. Sanford; n189 (3) the Sixteenth Amendment, which overruled Pollack v. Farmer's Loan & Trust Co.; n190 and (4) the Twenty-Sixth Amendment, which overruled Oregon v. Mitchell. n191 As we will see, each amendment was in harmony with the basic principles that underlie the Constitution - individual rights, separation of powers, and federalism. Moreover, in the cases where fundamental liberty interests were at stake, the amendment reestablished individual rights in light of the Court's limited interpretation of those rights. Without analyzing the propriety of the individual Supreme Court decisions, the following will demonstrate that, unlike the FMA, the use of the amendment power to overrule these cases was proper and consistent with basic democratic principles.

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ERDMANN TSDC CONCON CPAN AMENDMENT SOLVES ALL OF THE BENEFITS OF A JUDICIAL DECISION, WITHOUT THE COSTS OF VIOLATING PRECEDENTVermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html) [Werner]These points, however, capture only one side of the ledger. Precedent, and the constraint that new decisions be related analogically to old decisions, effect a partial transfer of authority from today’s judges to yesterday’s judges. As against claims of ancestral wisdom, Bentham emphasized that prior generations necessarily possess less information than current generations. If the problem is that changing circumstances make constitutional updating necessary, it is not obvious why it is good that current judges should be bound either by the specific holdings or by the intellectual premises and assumptions of the past. Weak theories of precedent may build in an escape hatch for changed circumstances, but the escape hatch in turn weakens the whole structure, diluting the decisionmaking benefits said to flow from precedent. Another cost of precedent is path dependence. Path dependence is an ambiguous term, but a simple interpretation in the judicial setting is that the order in which decisions arise is an important constraint on the decisions that may be made. Judges who would, acting on a blank slate, choose the constitutional rule that is best for the polity in the changed circumstances, may be barred from reaching the rule, even though they would have reached it had the cases arisen in a different order. Precedent has the effect of making some optimal rules inaccessible to current decisionmakers. When technological change threatened to render the rigid trimester framework of Roe v. Wade obsolete, the Supreme Court faced the prospect, in Pennsylvania v. Casey, that precedent would block a decision revising constitutional abortion law in appropriate ways, even though a decisive fraction of the Justices would have chosen the revised rule in a case of first impression.78 The joint opinion in Casey resorted to intellectual dishonesty, proclaiming adherence to precedent while discarding the trimester framework that previous cases has taken to be the core of Roe’s holding.79 The lesson of Casey is sometimes taken to be that precedent imposes no real constraint, but absent precedent the Justices would have had no need to write a mendacious, and widely ridiculed, opinion. The institutions that participate in the process of formal amendment, principally federal and state legislatures, are not subject to these pathologies. The drafters of constitutional amendments may write on a blank slate, drawing upon society’s best current information and deliberation about values, while ignoring precedent constraints that prevent courts from implementing current learning even if they possess it. The contrast is overdrawn, because legislatures deliberating about constitutional amendments use precedent in an informal way. But precisely because the practice of legislative precedent is relatively less formalized than the practice of judicial precedent, legislative practice may capture most of the decisional benefits of formal precedent while minimizing its costs. Legislatures may draw upon their past decisions purely to conserve on decisionmaking costs, while shrugging off precedential constraints whenever legislators’ best current information clearly suggests that the constitutional rules should be changed.

AMENDMENTS CAUSE JUDICIAL MODELINGMarron ‘03 [Brian P. Editor in Chief of MARGINS Symposium @ Maryland Law, 3 Conn. Pub. Int. L.J. 157, ln] Raskin explains that some of the solutions require the adoption of new Constitutional amendments such as the ones he has mentioned earlier. Congress lacks the power to effectively reverse the Supreme Court's (mis)interpretations of the Constitution that rejected democratic values. 129 In fact, a movement for democratic constitutional change itself can influence the reasoning of the Court. For instance, although the Equal Rights Amendment failed to pass, the Supreme Court apparently took notice of the movement's principles and began to apply "heightened" scrutiny to cases of gender-based classifications. 130

CONGRESS CAN FUNCTIONALLY OVERTURN SUPREME COURT DECISIONSPuro, 2000: [Stephen PUro - Professor Political Science and Public Policy, Saint Louis University, 2000, “SYMPOSIUM CONGRESS: DOES IT ABDICATE ITS POWER?: CONGRESS-SUPREME COURT RELATIONS: STRATEGIES OF POWER”, 19 St. Louis U. Pub. L. Rev. 117, 2000 pg. ]The 1950s and 1980s featured statutory and constitutional conflict between the Court and Congress. In general, Congress and the Court had different ideological positions on many issues, including government actions against persons accused of subversive activities and the scope of civil rights laws. Congress established an institutional voice that regularly reversed Supreme Court decisions. To give examples, in the late 1950s Congress authorized a more conservative interpretation of suspected individuals' rights against government investigations. The Supreme Court recognized this interpretation's stability and certainty by reversing some of its earlier rulings and restoring investigative power to Congress. I n the 1980s, Congress, which opposed conservative Court decisions narrowing the scope of civil rights and liberties, passed legislation to broaden civil rights protections, especially those of the 1964 Civil Rights Act. For example, Title VI of the Civil Rights Act of 1964 established that programs receiving federal funds could not discriminate based on race or national origin and that federal funding could be terminated if the programs discriminated. In Grove City College v. Bell the Court, agreeing with the Reagan Administration, narrowed the statute's application to specific programs only, not the entire institution, in a case technically involving Title IX of the Federal Education Act of 1972. Congress overturned this ruling in the Civil Rights Restoration Act of 1987. Congress's willingness to rewrite legislation that has been overturned by the Supreme Court has been limited by divisions within Congress and the constitutional or legislative interpretations of key committee members. Canon and Johnson argue that the Court can make lasting policy interpretations more easily when Congress has sharply divided policy preferences. But when there are solid coalitions opposing the Court in Congress, Congress can enforce its preferences against the Court's.

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ERDMANN TSDC CONCON CPCONGRESS HAS UNIQUE ENFORCEMENT POWER, MAKING IT DISTINCT AND BETTER THAN THE COURTSNowlin, asst prof law Mississippi, 01 (Jack Wade Nowlin, Assistant Professor of Law at the University of Mississippi School of Law, Winter 2000 / 2001, Kentucky Law Journal, “The Constitutional Illegitimacy of Expansive Judicial Power: A Populist Structural Interpretive Analysis,” 89 Ky. L.J. 387, Lexis) [Dan Li]Michael McConnell also maintains that "[t]he historical record shows that the framers of the Amendment expected Congress, not the Court, to be the primary agent of its enforcement, and that Congress would not necessarily consider itself bound by Court precedents in executing that function." n232 James E. Bond has concluded that this was also the general understanding of the highly reluctant Ratifiers in the defeated southern states, who were generally much more concerned with the effects of Congress's section 5 power than with judicial enforcement. n233 Additionally, Christopher Wolfe has argued that the understanding of judicial power in place in the nineteenth century requires the Supreme Court to grant a presumption of constitutionality to both (1) state legislation potentially violative of the Amendment and (2) congressional legislation purporting to enforce the Amendment against the states. n234 Wolfe's view, then, also suggests that Congress has potentially much broader interpretive/ enforce- ment power than the Court. n235

AMENDMENTS CAN’T BE CHECKED BY JUDICIAL POWERSSchaffner 05 [Joan, Prof of Law @ George Washington Law, “The federal marriage amendment: To protect the sanctity of marriage or destroy constitutional democracy?,” 54 Am. U.L. Rev. 1487, ln] Nevertheless, the generally accepted legal view derived from the plain language of Article V is that the Court has no authority to question the substance of constitutional amendments. If the procedural requirements of Article V are properly followed, the amendment is valid. 46 The reason for this is simple. The amendment process is the sole check on judicial power to interpret the Constitution. Thus, if the judiciary could review the substance of constitutional amendments, it would wield unchecked ultimate power. 47 This is particularly problematic because its members are not elected but rather are appointed and serve for life. 48 The judiciary, in fact, is designed to be counter-majoritarian and is not well-suited to express the will of the "majority." 49 Therefore, it is generally understood that the Supreme Court has no power to determine the content of the Constitution, but only the power to interpret that which the Constitution does contain. 50

DESPITE POPULAR BELIEF, CONGRESS CAN OVERRULE COURT DECISIONS. SEVERAL EMPIRICAL EXAMPLES PROVEFriedman 01 (Leon Friedman a professor of constitutional law at the Hofstra University School of Law. Overruling the Courts: “Will Congress use its Power to Overturn the Supreme Courts Narrowing of Civil Rights Laws” August 26 2001[http://www.prospect.org/cs/articles?article=overruling_the_court]One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law. But time and time again, Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction. The Supreme Court often insists that Congress cannot really "overrule" its decisions on what a law means: The justices' interpretation has to be correct since the Constitution gives final say to the highest court in the land. But Congress certainly has the power to pass a new or revised law that "changes" or "reverses" the meaning or scope of the law as interpreted by the Court, and the legislative history of the new law usually states that it was intended to "overrule" a specific Court decision. Often the reversal is in highly technical areas, such as the statute of limitations in securities-fraud cases, the jurisdiction of tribal courts on Indian reservations, or the power of state courts to order denaturalization of citizens. But in the last 20 years, a main target of congressional "overruling" has been the Supreme Court's decisions in the area of civil rights. In 1982, for example, Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v. Bolden, a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked. In 1988, Congress overruled another Supreme Court decision (in the 1984 case Grove City College v. Bell) by passing the Civil Rights Restoration Act, which broadened the coverage of Title VI of the Civil Rights Act of 1964. The legislative history of that law specifically recited that "certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon" a number of federal civil rights statutes and that "legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations" of those laws.

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ERDMANN TSDC CONCON CPTHE COURTS INHERENTLY GAIN A GREAT DEAL OF THEIR POWER FROM CONGRESSJoint Committee on the Organization of Congress, December ’93 (JCOC, Final Report, Accessed June 23 2009, http://www.rules.house.gov/archives/jcoc2ay.htm)Since Congress has much of the responsibility to flesh out the entities of ``judicial power,'' Congress appears to have substantial power to control and bend the courts to its will. To a great degree, however, this power has proved to be illusory. What Congress has done is to create a Federal judiciary with powers known perhaps nowhere else in the world. Its efforts to use these powers to alter the decisions of the courts and to divest the courts of their independence have been episodic and only sporadically successful.1 However, Congress has utilized many of these basic powers to influence the Supreme Court and the lower Federal courts . The Constitution is silent on the number of associate justices, so Congress in the 1789 Judiciary Act provided for a Supreme Court of a chief justice and five associate justices. The number was gradually increased until it reached a total of ten in 1863, but with Andrew Johnson's accession to the Presidency, the number was reduced to seven, so that Johnson could not fill any vacancies that might occur. After he left office, Congress increased the number to nine where it has since remained.2 Although it ultimately was not enacted by Congress, President Roosevelt's ``Court-packing plan'' to enlarge the membership of the Court by one justice for each justice over age 75 has been cited as the underlying reason for the Court's changed course in the late 1930s, the ``switch in time that saved nine.''3 On another occasion, Congress used its authority to determine the time and place of sessions of the Court in order to postpone for 14 months a Court session to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.4

CONGRESS HAS EXPLICIT POWERS FOR OVERRIDING THE COURTS AND HAVE DONE SO IN THE PASTJoint Committee on the Organization of Congress, December ’93 (JCOC, Final Report, Accessed June 23 2009, http://www.rules.house.gov/archives/jcoc2ay.htm)Political action does not take place in a vacuum. Any congressional enactment or effort to enact that has an adverse impact on the courts is usually directed to altering or reversing a decision of the Federal courts, not necessarily a Supreme Court case,6 although, of course, Supreme Court cases are typically the most noteworthy. Constitutional decisions by the courts limiting legislative powers are reversible, strictly speaking, only through amending the Constitution, a difficult and time-consuming process. Yet, that result has been achieved in the eleventh amendment, the first sentence of the fourteenth amendment, the sixteenth amendment, the nineteenth amendment, and the twenty-sixth amendment.11 However, the usual result of efforts to overturn constitutional decisions by amending the Constitution has been failure. One need only think of recent movements, such as the drive to amend the Constitution to authorize legislation that would penalize desecration of the United States flag, in response to Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).12 Earlier initiatives dealt with school prayer, legislative apportionment, and abortion. Only sustained and energetic work in Congress and in the States, complemented with vigorous public support, is capable of changing the Constitution.

JUDICIAL ACTIVISM CREATES A SNOWBALL EFFECT, FUTURE ABUSES OF THE COURT POWER DESTROY DEMOCRACY Mckeever, 1997: [Institution of Advanced Legal Studies “The United States supreme court: A political and legal analysis.” Pg. ]At the opposite end of the spectrum form the minimal court lies the unlimited court. This school of thought is advanced by some contemporary liberals who believe that the Court can and should re-define its creation. It ahs been argued, for example, that the court should abdicate responsibility for settling disputes between Congress and the presidency and between the federal government and the States because, as a practical matter, these can be left to political bargaining and competition between the parties concerned. On the other hand, the court should play a much expanded role as a policy-maker on matters of civil rights and liberties, since it is better equipped than any other institution to ‘do justice’ in this area of government. The most important thing to note about this conception of the Court is that it is no longer bound by the spirit or text of the Constitution when it dispenses justice. It becomes, in essence, a rolling constitutional convention on human rights, empowered to expand the zone of individual liberty wherever it detects an undesirable interference by government in the lives of its citizens. An unlimited Supreme Court has the great attraction of providing the American people with a wide-ranging and relatively impartial watchdog over governmental policies with significant implications for civil liberties. Unfortunately to allow the Court to exercise such plenary power carries with it a high risk of excessive judicial activism . Once all restraints have been removed from judicial control, what remains of democratic government and the just powers of elected representatives? This concern is a serious one, as the history of the Court suggests. In periods of general judicial activism, such as the 1920s and 1930s, or the 1960s and 1970s, the Court has found it difficult to draw a line beyond which it will not step. The expansion of judicial power has an internal dynamic all its own, especially as the more the Court does, the more it is asked to do. And the nearer it gets to the political end, the more the Court loses its legitimacy as a judicial body. At the extreme, it becomes not a court of law, but a super-legislature with the power to override the Congress and President on at least some important matters of public policy.

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ERDMANN TSDC CONCON CPCONGRESS > PRESIDENT

AGGRESSIVE PRESIDENTIAL POWER DETERIORATES RULE OF LAW AND UNDERMINES AMERICAN DEMOCRACY. ACTION IS CRITICAL NOW TO CURB THE POLITICAL POWER OF THE EXECUTIVEShane, 09: [Peter M. - Chair in Law at the Ohio State University’s Moritz College of Law, internationally recognized authority on constitutional and administrative law. May 2009, Excerpt from “Madison’s Nightmare: How Executive Power Threatens American Democracy,” http://www.press.uchicago.edu/Misc/Chicago/749396.html Other presidentialist legal thinkers, including advocates for presidentialism under Democratic Administrations, have argued that presidentialism is such good governmental practice that either we should read the Constitution in a more modern vein in order to mandate presidentialism or we should welcome practices of legislative and judicial deference to the President that allow government to behave in a presidentialist fashion. The historical record, however, does not bear out the claims for presidentialism as good practice. If we look at the functioning of our national executive when behaving most consistently with the tenets of presidentialism, we frequently find that the assumption of unilateral presidential authority prompts a narrowness in consultation, and a defensiveness and rigidity in outlook, that degrade the quality of executive decision making. Furthermore, as might have been predicted, presidentialism operates as an ethos of government in a way that undermines other critical values, such as allegiance to the rule of law and respect for coequal branches and divergent political outlooks. As discussed in chapters 4 and 5, the results, made dramatically manifest in the “Bush 43” Administration, have included dangerously irresponsible government lawyering and a fetishizing of presidential prerogative in ways that defy common sense and the public interest. When presidentialist practice is analyzed clearly, it seems to rest on ideas about democracy and the rule of law that are unattractive and deeply unpersuasive. Of course, the nation sometimes benefits from unilateral presidential action — Washington’s proclamation of neutrality, Lincoln’s Emancipation Proclamation, and the resolution of the Cuban missile crisis are but three celebrated examples of the many undoubtedly available. But the realization of these benefits does not require anything like the wholesale adoption of aggressive presidentialism, either as constitutional theory or prevailing government practice. In all but the most exceptional circumstances, searching congressional oversight, robust presidential accountability to the rule of law, and a pluralist approach to policy development within the executive branch are all consistent with the level of executive branch energy we need in order to thrive as a nation. The ambitions of the unilateral presidency cannot be squared with either the presidency envisioned by our Constitution or contemporary needs. Its proponents may argue that the historical conception ought to be replaced with a new unilateral presidency because a more autonomous, less fettered presidency actually works better in the national interest than does a presidency subject to strong checks and balances. But time and time again, it has become evident that Presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously. The new unilateral presidency is thus not appealing either as constitutional interpretation or as good institutional design. To put the point another way, the Framers got this right. It is now critical to restore checks and balances to robust health and reinvigorate American democracy so that no narrow faction of the American polity can dominate policy making throughout all our institutions of national government.

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ERDMANN TSDC CONCON CPCONGRESSIONAL ACTION CHECKS PRESIDENTIAL POWERSVieira 08– Edwin Vieira Jr. is an attorney and author who concentrates on issues of constitutional law: [March 17, 2008, “Myths of Presidential Power,” The New American, vol. 24 iss. 6; pg. 24. http://proquest.umi.com.proxy.lib.umich.edu/pqdweb?did=1456160991&sid=2&Fmt=3&clientId=17822&RQT=309&VName=PQD]Over the course of many successive administrations, the presidency has slowly accumulated unconstitutional power that the Founding Fathers never intended. The Bush administration daily bombards Americans with hyperbole about the "inherent powers" of the president. With each new act the president predicates on these mythical powers, their destructive consequences expand . Recently, the president indicated in a "signing statement" that he would disregard four provisions of the 2008 National Defense Authorization Act which, he claimed, "could inhibit the president's ability ... to execute his authority as commander in chief." One provision forbids expenditures "to establish any military installation or base for the permanent stationing of United States Armed Forces in Iraq." Another requires intelligence agencies to turn over to congressional committees "any existing intelligence assessment, report, estimate or legal opinion." A third creates a commission to investigate mismanagement, waste, and excessive force by contractors operating in Iraq and Afghanistan. And the fourth provides protection for whistle-blowers working for government contractors. Defiance of Congress - and of the Constitution - so blatant requires that the legal record be set straight. The Constitution provides that "The executive Power shall be vested in a President of the United States." This does not grant limitless authority. Rather, constitutional "executive Power" consists of those powers explicitly delegated to the president, and created in the "Laws" that Congress enacts "for carrying into Execution the ... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Inasmuch as "All legislative Powers ... granted [by the Constitution] shall be vested in a Congress of the United States" and "Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution" the president's powers, the president enjoys no lawmaking power. The president cannot add to or subtract from his constitutional or statutory powers or duties by proclamations, executive orders, directives, "signing statements," or any other decrees. The Constitution subjects the president to Congress' control in several ways: * First, exercising its authority "To make all Laws which shall be necessary and proper," Congress may give to or withhold from the president whatever constitutionally valid executive powers it deems fit, qualifying or restricting those powers as to the periods of time in which they may be effective, the purposes for and conditions under which they may be employed, the extent to which their operations may be subject to judicial review, and so on. * Second, because "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," Congress may specify precisely when, where, and how the president shall

spend - or not spend - whatever "Money" may be necessary "for carrying into Execution" any or all of his powers. * Third, within the limits of its own constitutional authority, Congress can create whatever agencies, offices, and officers it deems "necessary and proper" to fulfill the functions of the executive branch, and can set their durations, purposes, powers, terms and conditions of service, and budgets. * Fourth, the president can neither dispense members of the executive branch from their duties as imposed by law, nor add to those duties - Kendall v. United States ex rel. Stokes, 37 U.S. (12 Peters) 524, 610, 612-613 (1838). And he must assume ultimate responsibility for whatever transpires in the executive branch. * Fifth, if the president balks at carrying out Congress' directives, or if he orders, is complicit in, allows, or recklessly disregards illegal activities within the executive branch - in violation of his constitutional duty to "take Care that the Laws be faithfully executed" - he can be impeached, convicted, and removed from office for "high Crimes and Misdemeanors," and then prosecuted criminally, not only under the laws of the United States proper but also for "Offences against the Law of Nations" that Congress has "define[d]." That the status of commander in chief is explicitly delegated establishes that it is not inherent in "The executive Power." Had it not been delegated, the president could not claim it. Moreover, the president is not commander in chief of the country as a whole - akin to some Führer or Duce - or even of the General Government. In the words of the Constitution, he is merely "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." This narrow specification of authority proves how little power the president can exercise. Here, one must contrast the executive power the king of Great Britain exercised in the late 1700s. As Sir William Blackstone explained in his Commentaries on the Laws of England, the king enjoyed "the sole prerogative of making war and peace"; acted "as the generalissimo, or the first in military command, within the kingdom"; and exercised "the sole power of raising and regulating fleets and armies" and "the sole supreme government and command of the militia." The Constitution, however, denies the president all of this authority, except the office of commander in chief, assigning it instead to Congress.

THE CONGRESS CHECKS THE PRESIDENTIAL AUTHORITY CREATING A NECESSARY BALANCE OF POWERJenks 2007 (Paul Jenks Paul Jenks is a veteran expert on Congress and legislation who reports from Washington, D.C. , 5-29-2007 Government Relations, “Checks on Power”, http://www.llrx.com/congress.checksonpower.htm)Recent Congressional changes has brought into view a number of different mechanisms Congress has at is disposal to check Presidential authority . The most basic check on Presidential authority lies in the creation of statutory authority. Outside of powers allocated by the Constitution, every other power the President has comes from statutes (law) approved by Congress. For over 200 years Congress has been allocating all kinds of authority to the President. This check on authority however can be subject to all kinds of interpretation. The President may maintain he already has the authority to do something and goes ahead and does it. This has happened in recent cases relating to intelligence gathering authority. Sometimes Congress maintains the statute requires the President to do something that the President does not. For example the Clean Air Act (the Supreme Court recently ruled) requires the Environmental Protection Agency (EPA) to monitor certain particulate emissions from power plants. The EPA (an Executive Agency) didn't think it had that authority. Congress also has the power to review the performance of executive agencies. They do so with oversight hearings . Though not a real check on Presidential authority, hearings could provide some pause for some more controversial actions of a President. Recent hearings featuring the Attorney General illustrate this. The Attorney General is embroiled in a controversy over the firing of US Attorneys (an executive branch prerogative). Congress chose to call the Attorney General in for a very uncomfortable hearing. If anything criminal is found during a Congressional oversight investigation, the case could be referred to the Justice Department, but then again - that is under the President's authority. You can perhaps see the pitfalls of this type of check on executive powers. In the end, if Congress doesn't want the President to have a specific power (assuming it is not a constitutionally granted power), they can legislate it away, if there are more than 2/3rds of the members of Congress who agree.

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ERDMANN TSDC CONCON CPAMENDMENT SOLVENCY

CONSTITUTIONAL AMENDMENTS ARE KEY TO SEND AN INTERNATIONAL SIGNAL OF DEMOCRACY.Bernstein 1993 (Richard B., Amending America: if we love the Constitution so much, why do we keep trying to change it? New York : Times Books, c1993.)The amending process has significance for reasons ranging beyond its place in the American story. While Article V has become a political football at home, its example is bearing fruit abroad. Today, peoples throughout the world strive to redesign their governments and politics, restoring idea of liberty and principles of self-government long banished from their public lives. Many democratic movements, such as solidarity in Poland and Civic Forum and Public Against Violence in the Czech and Slovak Federation Republic, look to American examples as they reestablish democratic government and politics. They do not seek Americans solutions to the perennial problems of government; rather they draw encouragement from the American experience. Thus the history of American people's creative engagement with their Constitution through the amending process contributes to greater understanding, both here and abroad, of the enduring challenge of democratic governance. The book is a contribution to furthering that growth of understanding.

CONGRESS WORKS BEST Long, 2001: [Carolyn Long - assistant professor of political science at Washington State University, Vancouver, Congress Confronts the Court, 2001, p. 92-93. Google Books]As a representative branch of government, Congress brings institutional strengths to this conversation about the Constitution that do not exist on the Supreme Court. Congress can rake the pulse of the American public and reflect its will in its legislative proposals. Moreover, its manner of deliberating legislation provides the opportunity for groups such as the Coalition for the Free Exercise of Religion and the American Indian Religious Freedom Coalition to also participate in the legislative process. Ultimately, encouraging and recognizing the role of multiple constitutional interpreters provides the country with multiple avenues for the protection of individual rights and liberties.

A CONSTITUTIONAL AMENDMENT SOLVES BETTERWorthen 04 <Kevin J. (Professor of Law and Associate Dean, J. Reuben Clark Law School, Brigham Young University), BYO Journal of Public Law, “Same-Sex Marriage Symposium Issue: Who Decides and What Difference Does It Make?: Defining Marriage in “Our Democratic, Federal Republic,” 18 BYU J. Pub. L. 273, 2004, lexis>A federal constitutional amendment n85 either legalizing or (more likely at the present time) prohibiting n86 same-sex marriage would not as clearly undermine the structural principles of "our" system of government as would a federal statute or a U.S. Supreme Court decision based on privacy or some other substantive value judgment. For just as clearly as the people limited congressional authority to the subjects expressly mentioned in the Constitution, they also authorized amendments -- even amendments containing value judgments (as the presence of the Thirteenth n88 amendments demonstrates). Moreover, such an amendment would not, as a policy matter, be as violative of either the

federal or republican features as would a federal statute, given that a constitutional amendment requires the concurrence of three-quarters of the states, thereby ensuring more state participation and engendering less alienation of the citizenry.Similarly, that same majoritarian ratification process would render a solution by federal constitutional amendment less violative of the democratic feature of "our" government than would a judicial decision. Thus, of the national solutions, a federal constitutional amendment appears to be the best, n89 at least when measured by the extent to which it complies [*295] with the key premises of "our democratic, federal, republican" system of government

THERE ARE ALTERNATIVE WAYS TO PASS CONSTITUTIONAL AMENDMENTS.Smith 2014 (Raymond A. Smith, Ph.D., is a senior fellow at the Progressive Policy Institute; an adjunct assistant professor of political science at Columbia University and New York University; and author of Importing Democracy: Ideas from Around the World to Reform and Revitalize American Politics and Government. January 18th, 2014 http://republic3-0.com/reclaiming-powerful-tool-reform-constitutional-amendments/)A final point worth recalling is that Article V does contain provisions permitting valid alternative routes for enacting amendments. For example, Congress can propose an amendment to the states not only via their legislatures, but also to one-time ratifying conventions to be specially convened in each state. It did so with the 21st amendment, which repealed Prohibition, in order to circumvent entrenched interests which might have exerted far more influence on a continuing legislative body than on a one-time, single-purpose assembly. Should Congress muster the ability to agree on an amendment, it need not be thwarted by the often-parochial politics of state legislatures but could use state ratifying conventions. Conversely, Congress itself can be circumvented if two-thirds of the state legislatures petition for the calling of a Constitutional Convention to propose amendments. It was exactly this possibility, in fact, that made possible the 17th Amendment allowing for direct election of U.S. Senators. By 1910, 27 of the 31 required states had joined the effort; this essentially forced the hand of Congress, which feared the uncharted territory of a Constitutional Convention. Thus, it’s clear that even the credible threat of a Convention might be enough to spur durable change.

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ERDMANN TSDC CONCON CPCONSTITUTIONAL AMENDMENTS FIX THE SYSTEM AND APPEAL TO BOTH PARTIES. Smith 2014 (Raymond A. Smith, Ph.D., is a senior fellow at the Progressive Policy Institute; an adjunct assistant professor of political science at Columbia University and New York University; and author of Importing Democracy: Ideas from Around the World to Reform and Revitalize American Politics and Government. January 18th, 2014 http://republic3-0.com/reclaiming-powerful-tool-reform-constitutional-amendments/)At a time when observers across the political spectrum agree that the machinery of American government is broken, the single most powerful mechanism for repair appears to be effectively off the table: the passage of new amendments to the U.S. Constitution. Yet this might be the only solution that could bring about sustained change and reform. Indeed, the amending process could be used to authoritatively address a range of persistent institutional challenges. Amendments could clarify ambiguities in presidential war powers and the use of recess appointments. They could reform or abolish the electoral college, allow naturalized citizens to run for president, enhance voting rights, and create a framework for campaign finance reform. They might enact congressional term limits, or curb lifetime tenure for Supreme Court justices at a time of ever-lengthening lifespans. The amending process could also be used to address thorny subjects such as the scope of social and economic rights and the nature of separation of church and state. Of course, the immediate objection to the idea of amending the Constitution is that it is simply too hard to achieve in times of political division. And it’s true that the Framers did insulate their handiwork from quick or easy change. The most commonly used formula for amendment requires the support of two-thirds of each House of Congress and then ratification by three-quarters of the states. This high hurdle demands consensus that is both broad and deep, including bipartisan supermajorities in both Houses as well as the agreement at least 38 states. However, it is not at all clear that amending the Constitution per se is an issue that needs to break along the usual lines of Republican versus Democrat or conservative versus liberal. In fact, there’s something for all sides to like. Conservatives can be heartened that adding a textual change to the Constitution is completely in accord with even the most originalist understandings of our founding document. Article V is clearcut in stating that a duly enacted amendment has the full force of the original text of the Constitution. At the same time, liberals might take comfort that, in practice, amendments historically have been used to expand personal freedoms and equal rights, including extending the electoral franchise and establishing equal protection of the law. Given that 43 years have once again elapsed since the amending process has been completed, historical cycles alone would suggest that America might be due for a round of constitutional tune-ups. The dire state of political gridlock and inefficiency in the United States over at least the last decade makes it a matter of urgency.

CONSTITUTIONAL AMENDMENTS ARE THE ONLY LEGITIMATE WAY TO ALTER THE CONSTITUTION. Presser 0 <Stephen B. (Raoul Berger Professor of Legal History, Northwestern University School of Law, and Professor of Business law, Kellogg Graduate School of Management and Strategy, Northwestern University), Texas Review of Law & Politics, “Constitutional Amendments: Dangerous Threat or Democracy in Action?” Fall 2000, lexis>Great and Extraordinary Occasions appears to have some trouble distinguishing between proper and narrowly targeted constitutional amendments on the one hand, and wholesale attempts to do away with the constitutional structure, on the other. The authors conclude that "our history counsels that the federal Constitution should continue to be altered sparingly and only as a last resort. Only amendments that are absolutely necessary should be proposed and enacted." n33 I have been able to find no historical support for those propositions, nor have I been able to discover any detailed theory, espoused by the Framers, upon which a determination may be made as to the appropriateness of a particular amendment. I believe that the Framers' failure to articulate an absolutist philosophical theory of constitutional amendment - a theory like that proposed by Great and Extraordinary Occasions - was grounded in a belief, as espoused by Hamilton, Madison, Washington, and others, that "experience," not theory, was to guide constitutional amendment. n34 The [*217] Framers were practical men. Their solution to the problem noted by Madison in Federalist 43 - the problem of setting a balance between an inflexible document and one that could easily be revised out of substantial existence - was to put in place the Article V structure for amendments. n35 As appears to have been true for the resolution of many political issues, it was the structural edifice set up by the Constitution itself, and not any abstract political theory that was perceived to be the safest means of securing the blessings of liberty and domestic tranquility. n36The authors of Great and Extraordinary Occasions are correct that a certain amount of "self-restraint" is necessary when one approaches constitutional change. They are mistaken, however, in concluding that an abstract set of guidelines will provide such self-restraint. The foresight of the Framers has already provided the necessary restraints - the supermajority requirement and Article V procedures. I do not know what it means to say, as the authors of these Guidelines do, that we should have no constitutional amendments unless "absolutely necessary." n37 Does it mean that for each and every proposed constitutional amendment we must ask, "Can the Republic endure without this amendment?" If so, and particularly since the Supreme Court has shown its willingness to step in and amend the Constitution, if the thought of the authors of Great and Extraordinary Occasions were followed, we would rarely, if ever, have constitutional amendments. The inevitable evolution of the Constitution would continue to be accomplished by extra-constitutional means. I cannot help but wonder if this is what the framers of the Guidelines would actually prefer.

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ERDMANN TSDC CONCON CPTHE AMENDMENT PROCESS IS KEY TO PUBLICIZING THE ISSUE AND SPARKING DEBATEDenning & Vile ’02 (Brannon P, Assistant Prof of Law, Southern Illinois University School of Law; John R, Chair, Dept of Political Science @ Middle Tennessee State University; November, 77 Tul. L. Rev. 247 ln) [Werner]Proposals for constitutional amendment inevitably attract publicity. The debates in Congress publicize the change and allow a forum for proponents and opponents of the change to make their case both to members of Congress and to those who will eventually be called upon to ratify the amendment, if passed. Even amendments that Strauss would characterize as "do-nothing" amendments (the Twenty-Seventh Amendment, for example) received the attention of Congress and the press n130 that only the most dramatic informal constitutional changes do. The educative function of the debate aside, if proposed and ratified, a formal amendment undeniably changes the Constitution in one significant respect: it adds language to the Constitution. Thus, to every person who bothers to look at a copy of the Constitution, the change will be noticed. This textual referent, being available and apparent, enables more people to understand the fact that there has been constitutional change and to take note of it than if the change comes informally, as the culmination of doctrinal evolution in the Supreme Court or by accretions that harden into custom in the other branches. The publicity accompanying the change may, in fact, increase public expectations that the change will be honored by the other branches, raising the costs of evasion or under-enforcement. n131 [*280] One might as well argue against a written constitution as against amendments; neither are sure guarantees. There is reason to believe, however, that the American Founders, drawing in part from the Protestant heritage that stressed the authority of written scriptures, were not completely mistaken in believing that written words available for inspection by all may often have a force that words not reduced to writing may not. Not for nothing did Washington's farewell speech refer to constitutional change through explicit, as well as authentic acts. n132 It might be worth remembering that the correspondence between Jefferson and Madison in many ways echoed the debates that had taken place when America separated from England. Students of comparative government know that Great Britain does not have a written constitution. n133 Perhaps more accurately, while parts of the British constitution are written and parts are unwritten, the "constitution" is not perceived - like the American Constitution - to be superior law unchangeable by ordinary legislative means. Although believing that natural law should regulate the conduct of lawmakers, De Lolme argued that the Parliament had the power to do anything but change a woman into a man or a man into a woman - that is, anything other than that which was then considered beyond the realm of human action. n134

AMENDMENTS AREN’T BAD - THE CP IS ONLY ONE AMENDMENT AND DOESN’T CHANGE THE WAY LAW IS ENFORCED – THE PLAN RISKS SIMILAR ABUSES BY THE JUDICIAL BRANCH.Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html) [Werner]In Part II, the core of the paper, I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of constitutional common law. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time—a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Moreover, a public norm of the kind embodied in the generic case against amendment would produce either a suboptimal rate of constitutional amendments, or an optimal rate at excessive cost. The generic case can be reconstructed as a weak presumption, but in that form it loses its distinctive force.

AMENDMENTS CAN PASS QUICKLYJackson ’01 (Jesse L. Jackson, Jr., 2001, U.S. Representative, “A More Perfect Union: Advancing New American Rights”)Some will say that amending the Constitution once, not to mention eight times, takes too long, requires too much energy, and costs too much money – that it’s an inefficient stewardship of time and resources. The answer to the first argument is that the Constitution has been amended twenty-seven times, including seventeen times since the original Bill of Rights was passed. (The Bill of Rights itself required 811 days – from September 25, 1789, to December 15, 1791 – for ratification.) Following the initial, usually lengthy struggle to get an amendment through two-thirds of the House and Senate, there is no time limit for ratifying it – that is, no seven-year limitation on ratifying amendments, as many people believe. This schedule was arbitrarily placed on the Equal Rights Amendment (and later extended to ten years) and the D.C. Statehood Amendment. Once a state legislature votes for an amendment, that affirmation remains in place, unless a later body reverses it. How long it takes for my amendments to be passed by House and Senate, and ratified by three-quarters of the state legislatures, will be determined by a combination of political leadership and the will of the American people. If Americans have a strong desire for these rights – have a political fire burning in their bellies – such amendments can be shuttled through the House and Senate and ratified relatively quickly after a legitimate national debate on their substance and implications.

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ERDMANN TSDC CONCON CPTHE CP SOLVES– NOT LIKELY TO BE REVERSED OR CHALLENGEDVermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html) [Werner]A benefit of formal amendments, then, is to more effectively discourage subsequent efforts by constitutional losers to overturn adverse constitutional change. Precisely because the formal amendment process is more costly to invoke, formal amendments are more enduring than are judicial decisions that update constitutional rules;83 so losers in the amendment process will less frequently attempt to overturn or destabilize the new rules, in subsequent periods, than will losers in the process of common-law constitutionalism. This point does not necessarily suppose that dissenters from a given amendment come to agree with the enacting supermajority’s judgment, only that they accept the new equilibrium faute de mieux. Obviously more work might be done to specify these intuitions, but it is at least plausible to think that the simplest view, on which formal amendments incur decisionmaking costs that exceed their other benefits, is untenably crude. The overall picture, rather, is a tradeoff along the following lines. Relative to common-law constitutionalism, the Article V process requires a higher initial investment to secure constitutional change. If Mueller is right, however, constitutional settlements produced by the Article V process will tend to be more enduring over time than is judicial updating, which can be unsettled and refought at lower cost in subsequent periods.

CONGRESS IS THE BEST BODY TO ENACT POLICYKramer 04 (Larry D. Kramer, law professor at New York University School of Law, July 2004, California Law Review Vol. 94, No. 4, “Popular Constitutionalism,” http://heinonline.org/HOL/Page?handle=hein.journals/calr92&id=1&size=2&collection=journals&index=journals /calr) [Dan Li]Turning to Congress, the portrayal of legislators as sating a single-minded obsession with reelection by becoming willing puppets of narrow interest groups is scarcely less distorted on its side than the picture of judges as black-robed philosophers. As Mark Tushnet notes, scholars who study Congress generally agree that while legislators are naturally concerned with reelection, they have other things on their minds as well - not the least of which is making a difference and building a reputation by creating good public policy. Political debates on matters of constitutional principle are common in Congress, partly because voters care about such matters, and an important element of any legislator's job consists of explaining decisions to constituents back home. Obvious examples of such debates include congressional discussions of war powers, line-item vetoes, balanced budgets, and federalism - all of which have received and continue to receive studious attention in Congress. But the list of subjects is not limited to questions of structure and includes individual rights as well. Keith Whittington again finds the right note: Continuing extrajudicial debates over affirmative action, euthanasia, the death penalty, pornography, school prayer, gay rights, Internet privacy, sexual harassment, and gun control reflect sustained concern with individual rights, constitutional values, and political principles. We may disagree with the conclusions that various extrajudicial bodies reach in these debates, as we may disagree with the conclusions of the courts, but it is difficult to maintain that such extrajudicial decisions are unconsidered or neglect considerations of justice and principle.

AMENDMENT SEEMS MORE LIKE A COMMAND FROM A SUPERIOR—SOLVES THE WHOLE CASERosen 95 [Jeff, 105 Yale L.J. 581, ln]Similarly, Posner’s “communication” theory of legislation, which compares judges to military officers attempting to decode obscure commands from their legislative superiors, may be harder to apply to constitutional interpretation, where the sovereign people in whose name the constitution is ratified do not have a single purpose that they are attempting to communicate. Nevertheless, the command metaphor is more apt in the constitutional than the statutory sphere, since the constitutional text, according to the Hamiltonian conceit, represents the intention of the people rather than the intention of their servants. Therefore, a constitution seems more like a command from superior (the people) to agent (judges and legislators) than an ordinary statute does.

CONGRESS CAN BETTER ENACT CONSTITUTIONAL LAWSJoint Committee on the Organization of Congress, December ’93 (JCOC, Final Report, Accessed June 23 2009, http://www.rules.house.gov/archives/jcoc2ay.htm)A reference was made above to ``[c]onstitutional decisions by the courts limiting legislative powers'' that would need an amendment to the Constitution to overturn. The distinction was made that in many cases the courts will hold that the Constitution does not require some protection of rights or does not deny the States some power. Assuming that Congress has legislative jurisdiction to act -- and in these days of expansive interpretation of the commerce clause, 5 fourteenth amendment and 2 fifteenth amendment powers, combined perhaps with the taxing and spending authority -- Congress may through ordinary legislation counter many of these constitutional interpretations and enact laws of a constitutional nature . For example, in Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court upheld a congressional enactment that barred the application of English literacy requirements to certain classes of voters, despite an earlier holding that nondiscriminatory English literacy qualifications did not violate the equal protection clause. Congress, through its authorization to enforce the fourteenth and fifteenth amendments, ``brought a specially informed legislative competence'' to its appraisal of the effect of state legislation on rights secured by the Reconstruction amendments, to which the Court would defer. The career of this principle has been varied, and it is a highly controversial doctrine, but yet the Court continues to recognize the existence of some power in Congress to define constitutionality.13

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ERDMANN TSDC CONCON CPAMENDMENTS CREATE LEGAL CHANGE—COMPARATIVELY BETTER THAN THE COURTSStoddard 1997(Thomas, Lawyer and executive director of the Lambda Legal Defense and Education Fund, November, "Bleeding Heart: Reflections on Using the Law to Make Social Change", 72 N.Y.U.L. Rev. 967, Lexis)The fact that the Act emanated from Congress rather than the Supreme Court may also have enhanced its legitimacy and promoted its public acceptance. To many white Southerners, Brown seemed thrust on them suddenly from above. They were not prepared for it, and they had little opportunity to participate in its formulation or implementation. The Act, however, came about only after much debate [*985] at all levels of government, in all segments of the society, and in every region of the country. And it came about only after a formal vote of the one body that can lay claim to be representative of the nation as a whole - the Congress. White Southerners had a chance to enter into both the debate and the vote; they could make their claims and express their views. In the end, those views were examined and rejected by the country overall. By virtue of timing, context, and method of enactment, then, the Civil Rights Act of 1964 carried a presumption of democratic legitimacy (one might say "validity") that was absent from Brown, at least in the imaginations of some white Southerners. This sense of legitimacy fostered public acceptance, even in the South, and made possible the Act's "culture-shifting" potential. Commentators for 200 years, from John Locke n26 to Robert Bork n27 - especially those, in recent years, identified with conservative politics - have asserted the superiority of legislative change. (Locke portrayed the legislature as the "supreme power of the commonwealth ... sacred and unalterable in the hands where the community have once placed it." n28 ) I find, after twenty years of work as a lawyer purporting to promote the public interest, that I have come to share the partiality for legislative lawmaking - but for reasons different from those of most other observers. I prefer legislative lawmaking because I view it as the avenue of change most likely to advance "culture-shifting" as well as "rule-shifting" - the method of lawmaking most likely to lead to absorption into the society of new ideas and relationships. Judicial lawmaking, however, ought not to be abandoned by public interest lawyers like me. Like so many of my colleagues, I do not always trust legislatures, and I would certainly not want them to have sole lawmaking authority in this or any other legal system - but judicial lawmaking ought to be employed with greater cunning and precision. Lawsuits are effective at highlighting problems. They may be effective at forcing government to face up to problems. But they are often ineffective at the long-term resolution of issues with deep cultural roots, for they focus on rules rather than the culture that sustains [*986] those rules, and as a result frequently fail to engage or connect with the public.

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DEMOCRACY SOLVES WAR.Washington Times 02 <The Washington Times, “Peaceful democracies; Supporting freedom abroad will reduce conflicts,” June 13, 2002, lexis>One of the biggest reasons, if not the biggest, for supporting democratic nations like Israel and Taiwan against their enemies is not merely because they are democracies but, equally important, that history shows that democracies do not fight each other regardless of cultural, political and economic differences between them. In other words, the more democracies in the world, the greater assurance of world peace. Modern wars have either been between dictatorships, theocratic or secular, or between a democracy and a non-democracy.

UNDEMOCRATIC NATIONS KILL 3X AS MANY PEOPLE AS ALL INTERNATIONAL AND CIVIL WARS COMBINED.Washington Times 02<The Washington Times, “Peaceful democracies; Supporting freedom abroad will reduce conflicts,” June 13, 2002, lexis>But there were wars in the last century, the century of totalitarianism, in which governments like the Soviet Union, Communist China, Nazi Germany and others became enemies of their own people. Professor Rudolph J. Rummel, a University of Hawaii political scientist, has been compiling statistics of mass murder and genocide in modern times by governments against their own peoples. His research has led him to the fearsome conclusion that 20th-century dictatorial governments killed more of their own people - three times as many -as have been killed in all civil and international wars put together. As of 1985, governments had killed 119,394,000 of their own citizens. The overwhelming majority of the victims [115,423,000] were killed by nonfree governments more "in cold blood than in the heat of battle."

DEMOCRACY PROMOTION IS SWEET—PREVENTS OPPRESSION, WAR, ECONOMIC DECLINE, AND FAMINEBeng 2000 PHAR KIM BENG, THE STRAITS TIMES (SINGAPORE), January 14, 2000, Should the US plug democracy in Asia? Accessed via lexis, [rapp/vandy] The spread of democracy can enhance US national interests in four major ways. Firstly, by encouraging other nations to democratise, the political conditions of otherwise repressive republics would improve. The pressure and attraction for others to enter America illegally would thus be reduced significantly. Secondly, as more countries democratise, that is by instituting multi-party electoral competition, the prospect of governments launching wars against one another would decline exponentially. This is because the decision to go to war would not be made by any one man or party at the helm, but would be subject to the purview and discretion of the public. Given the greater degree of public accountability, it would be correspondingly difficult for any government to justify the launching of an open war against the US or other nations. Democratic peace would, therefore, prevail across the world, much to the US' interests. Thirdly, democracy is also conducive to economic growth. A World Survey of Economic Freedom for 1995 to 1996, found that the countries rated "free" generated 81 per cent of the world's output even though they had only 17 per cent of the world's population. In another study by The Heritage Foundation, it was found that countries classified as "free" had annual 1980-1993 real per capita Gross Domestic Product (GDP) growth rates of 2.88 per cent. In "mostly-free" countries, the rate was 0.97 per cent; in "mostly-not-free" ones, minus 0.32 per cent; and in "repressed" countries, minus 1.44 per cent. Fourthly, the US should spread democracy because the citizens of democracies do not suffer from famines. Most of the countries that have experienced severe famines in recent decades have been among the world's least democratic: the Soviet Union (Ukraine in the early 1930s), China, Ethiopia, Somalia, Cambodia and Sudan. Throughout history, famines have occurred in many different types of countries, but never in a democracy. Democracies do not experience famines for reasons of greater transparency and accountability. To the extent that the incidence of famine continues to fall, massive cross-border human emigration would cease, too. Global and regional security would thus be enhanced, by which the US would no doubt stand to gain due to its extensive political and economic interests abroad.

AMENDMENTS ARE KEY TO DEMOCRACY—COURT ACTION IS UNIQUELY BAD Roberts 1998(Paul, Assistant Secretary of the Treasury in the Reagan Administration, January 25, "Congress Should Grab Back the Reins of Power", http://www.businessweek.com/stories/1998-01-25/congress-should-grab-back-the-reins-of-power)Democracy in America is being hollowed out, not because of organized interest groups or the way campaigns are financed. Democracy has become the exercise of holding a plebiscite on the economy every four years: We the People cannot rule ourselves when our elected representatives do not make the laws or impose the taxes. The unraveling of the separation of powers is leaving power unrestrained. This is the opposite of liberalism and repudiates its historic achievement.¶ Congress is empowered to make laws. It is not empowered to make other legislators by placing its lawmaking mandate in other hands. Political clout is up for grabs when the U.S. Supreme Court reads into the Constitution all manner of rights nowhere mentioned in it but does not enforce the right to self-rule and the separation of powers that are explicitly stated in the document's main articles. Eventually, unrestrained force becomes, in Lenin's words, "unlimited power, resting directly on force. Nothing else but that.

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ERDMANN TSDC CONCON CPCOURT ACTION UNDERMINES DEMOCRACYWest 1990(Robin, Professor at the University of Maryland School of Law, February, "Progressive and Conservative Constitutionalism", 88 Mich. L. Rev. 641, Lexis)The concluding Part of this article argues that even in the short term, and certainly in the long term, there are good reasons for developing an alternative, non- or post-liberal, and explicitly progressive paradigm of constitutional interpretation, even if it is clear, as it seems to be, that the present conservative Supreme Court will not embrace it. It also argues, however, that for both strategic and theoretical reasons, the proper audience for the development of a progressive interpretation of the Constitution is Congress rather than the courts. The progressive Constitution should be meant for, and therefore must be aimed toward, legislative rather than adjudicative change. The strategic reasons for this proposed reorientation of progressive constitutional discourse should be self-evident. Although the progressive Constitution is arguably consistent with some aspects of the liberal-legalist paradigm of the middle of this century, it is utterly incompatible with the conservative paradigm now dominating constitutional adjudication. It does not follow, however, that the progressive Constitution is incompatible with all constitutional decisionmaking: both legislatures and citizens have constitutional obligations, engage in constitutional discourse, and can be moved, presumably, to bring electoral politics in line with the progressive mandates of the Constitution, as those mandates have been understood and interpreted by progressive constitutional lawyers and theorists. I also argue, however, that for theoretical as well as strategic reasons, the long-range success, the sense, and even more modestly the relevance of the progressive interpretation of the Constitution, depend not only on the merits of its interpretive claims, but also, and perhaps more fundamentally, on a federal Congress re-enlivened to its constitutional obligations. First, of course, it is Congress, not the Court, that is specifically mandated under the fourteenth amendment to take positive action to ensure equal protection and due process rights -- the core constitutional tools for attacking illegitimate social and private power. If Congress is ever to fulfill this obligation, it will need the [*651] guidance of interpretive theories of the meaning of equal protection, due process, equality, and liberty that are aimed explicitly toward the context of legislative action and are not constrained by the possibilities and limits of adjudicative law. But more fundamentally, the progressive Constitution, I argue, will never achieve its full meaning -- and worse, will remain riddled with paradox and contradiction -- so long as it remains in an adjudicative forum. This is not only because of the probable political composition of the Court over the next few decades, but also because of the philosophical and political meanings of adjudicative law itself: the possibilities of adjudicative law are constrained by precisely the same profoundly conservative attitudes toward social power that underlie conservative constitutionalism. By acquiescing in a definition of the Constitution as a source of adjudicative law, progressives seriously undermine its progressive potential. Only by reconceptualizing the Constitution as a source of inspiration and guidance for legislation, rather than a superstructural constraint on adjudication, can we make good on its richly progressive promise. Therefore, the concluding Part of this article argues that, for structural long-term as well as strategic short-term reasons, the progressive Constitution -- the cluster of meanings found or implanted in constitutional guarantees by modern progressive scholars -- should be addressed to the Congress and to the citizenry, rather than to the courts. The goal of progressive constitutionalists, both in the academy and at the bar, over the coming decades should be to create what Bruce Ackerman has called in other contexts a "constitutional moment" n20 and what Owen Fiss might call more dramatically an "interpretive crisis." n21 Progressives need to create a world in which it is clear that a progressive Congress has embraced one set of constitutional meanings, and the conservative Court a contrasting and incompatible set. The Supreme Court does, and always has, as Fiss reminds us, read the Constitution so as to avoid crisis. n22 The lesson to draw is surely that only when faced with such a constitutional moment will this conservative Court change paths.

CONGRESSIONAL ACTION IS KEY TO DEMOCRACY—COURT INTERPRETATIONS WILL UNDERMINE ITWest 1990(Robin, Professor at the University of Maryland School of Law, February, "Progressive and Conservative Constitutionalism", 88 Mich. L. Rev. 641, Lexis)By way of conclusion, let me briefly characterize some of the gains of reorienting progressive constitutional discourse toward legislative rather than adjudicative action, and toward a congressional rather than a judicial audience. First, and perhaps most important, if we were to recharacterize our progressive understanding of the constitutional guarantees of liberty and equality as political ideals to guide legislation, rather than as legal restraints on legislation, many of these tensions within the progressive understanding of the Constitution would disappear. If we imagine Congress, rather than the Court, as the implicit audience of constitutional argument, it becomes far easier to envision arguments to the effect that the fourteenth amendment requires, rather than permits (as within the liberal paradigm) or precludes (as in the conservative) progressive objectives such as affirmative action programs, child care and support programs, greater police responsiveness to private and domestic violence, reform of marital rape laws, and the criminalization of homophobic, racist, and sexist assaults. Congress, after all, has the textual obligation to do something about the states' refusal to provide what the progressive means by "equal protection" -- to protect the citizenry against the damaging effects of rampant social and private inequality. It is easier to envision these arguments succeeding -- it is easier, in fact, even to state them -- not only because the fourteenth amendment [*718] is explicitly directed toward Congress rather than the Court, and not only because of the present composition of the Court, but also because of the differences between constraint and aspiration, tradition and ideal, corrective and distributive justice, the history of our settled past and the politics of our future possibilities, participatory lawmaking and adjudicative law enforcement. It is easier, in short, to envision the actualization of the progressive Constitution through legislative action than through adjudicative law because of the difference between law and politics. Second, if progressives were to reorient progressive constitutional debate toward legislative politics rather than adjudicative law, they would invigorate and enrich the terms and stakes of public debate. It is a truism that contemporary discourse in the public sphere has become nihilistic and devoid of a sense of moral purpose. A constitutionalized legislative process might reinject a sense of moral urgency, of moral purpose, and even of moral obligation into a morally bankrupt process. Again the reason for this should not be mysterious: we have become societally accustomed to understanding the Constitution as the repository of public and public-spirited morality. We have also, however, become accustomed to understanding the courts, rather than the Congress, as the forum for constitutional articulation and obligation. The Court, then, is understood as the locus of moral understanding and debate. It is hardly surprising that the consequence is a public perception, if not the reality, of a legislative branch mired in a thicket of narrow self-interest. We have, in effect, alienated the responsibility for public morality to the courts. One solution (and the solution for which I have argued elsewhere) n146 is to invigorate nonconstitutional moral public discourse. Given the pervasiveness of the perceived equation of public morality with constitutionalism, however, that may not be possible. The other solution is to expand the scope and audience of constitutional discourse.

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ERDMANN TSDC CONCON CPCONSTITUTIONAL AMENDMENTS KEY TO FEDERALISMKYVIG 2K (David, Professor of History at the University of Akron. Unintended consequences of constitutional amendment. Pg. 19)The article V amendment instrument embodied the framers’ concept of federalism. Individual states retained an important voice but not controlling authority over broadly supported central government. The national legislature could propose change, but any reform would have to be approved by most states; and if the national legislature declined to act when a substantial number of states wished it to do so, the latter could compel the calling of a convention to circumvent the former. Change binding on all required the assent of a preponderant majority of the states, through not their unanimous consent. The late-eighteenth-century inclination towards representative government was likewise evident in Article V. Elected representatives, whether assembled in legislatures or conventions, were regarded as best equipped to draft proposed constitutional reforms. The final sanctioning of changes in the name of the sovereign people could be carried out either by state legislatures, where representatives were left to make their own judgments, or conventions, where delegates chosen to reflect particular principles by voters of each state would prevail

CONSTITUTIONAL AMENDMENTS ARE LONG TERM SOLUTIONS FOR HUMAN RIGHTSSchwartz 2005 Summer, Victoria President and Fellows of Harvard College Harvard Journal on Legislation, http://www.lexisnexis.com.proxy1.cl.msu.edu/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7011771971&format=GNBFI&sort=BOOLEAN&startDocNo=26&resultsUrlKey=29_T7011771974&cisb=22_T7011771973&treeMax=true&treeWidth=0&csi=143841&docNo=46 Aside from the uniformity arguments, many advocates favor a constitutional amendment for the same reason that some people oppose it: its permanence. n219 Though legislators can take away tomorrow what they give today, the fact that amendments are difficult to remove or change n220 is a positive characteristic for those advocates who believe that victims' rights fall into the category of fundamental human rights, which necessarily belong in the Constitution

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AFFIRMATIVE

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AMENDMENT PROCESS TOO HARD, OTHER WAYS PREFERRED. PROCESS NEEDS REFORM. Griffin 95 Stephen M. Griffin, Associate Professor of Law at Tulane University. “The Nominee is Article 5.” Constitutional Commentary. Summer 1995. Lexis.By making it difficult to change the Constitution, the Framers forced a significant amount of constitutional change off the books and thus limited the ability of the Constitution to structure political outcomes. To the extent that we believe that constitutionalism should play this role, we should favor making change through Article V easier. It is not clear that there is a real need, for example, for the supermajority requirement for approval by state legislatures or conventions. If the concurrence of only a majority of states were required, some of the amendments approved by Congress but never ratified by the required supermajority would have become part of the Constitution. It appears that this includes the 1789 Reapportionment amendment, the 1810 Titles of Nobility amendment, the 1924 Child La [*173] bor amendment, and the 1972 Equal Rights amendment. n4 I am sure that different scholars would have different opinions as to whether these amendments were desirable. I confine myself to two observations: that approval of the Child Labor amendment might have given additional constitutional legitimacy to the New Deal and that we would be better off with the ERA. The crucial point, however, is that making amendment easier would have the effect of encouraging additional amendments to keep the Constitution up to date. Perhaps a supermajority of Congress should be sufficient to approve any amendment. While the contrary view that amending the Constitution must be done with caution is understandable, this view is in some tension with the goals of American constitutionalism. Making amendment difficult does not avoid constitutional change, it simply encourages change to occur through other means. If we value deliberative change, we should favor making constitutional amendment less difficult.

CONSTITUTIONAL AMENDMENTS ARE NOT NARROW—THEY ARE VULNERABLE TO SPECIAL INTEREST GROUPS AND MULTIPLE ACTORS.Manfredi. 1998. (Christopher P., Professor of Political Science at McGill University. “Why Do Formal Amendments Fail?: An Institutional Design Analysis” World Politics - Volume 50, Number 3, April 1998, pp. 377-400) (project muse)To summarize, high levels of interpretive fluidity and amending process rigidity characterize the institutional nature of constitutional politics in the U.S. Together, these characteristics increase the likelihood, or at least the perception, that constitutional modification will have policy consequences that cannot easily be reversed by subsequent amendments. The institutional inclusiveness of the process ensures that multiple actors will have the opportunity and the incentive to intervene in the process by demanding both interpretive and regulative rules, the objective of which is to confine the policy consequences of proposed amendments within narrow parameters. This dynamic played an important role in the eventual rejection of the ERA in 1982. Since the early 1920s the supporters of an equal rights amendment have pursued a redistributive strategy. Their initial purpose was to undermine the constitutionality of protective labor legislation that shielded women from allegedly deleterious working conditions and thereby excluded them from many jobs and professions. For almost two decades, a coalition of unions, progressive organizations, and conservatives succeeded in blocking various amendment proposals. Although supporters of an amendment sought to satisfy progressives and the labor movement by attaching regulative and interpretive rules to their proposals that would limit the impact of an equal rights amendment on special benefits for women workers, their efforts remained unsuccessful until the late 1960s, when judicial interpretation of the 1964 Civil Rights Act rendered the question of gender-specific protective measures moot. 37 With the amendment's impact on protective legislation no longer an issue, the National Organization for Women was able to enlist the support of unions and other liberal political organizations for the 1972 era.

THE INSTITUTIONAL OPENNESS OF THE COUNTERPLAN GUTS ITS SOLVENCY.Manfredi 1998 (Christopher P., Professor of Political Science at McGill University. “Why Do Formal Amendments Fail?: An Institutional Design Analysis” World Politics - Volume 50, Number 3, April 1998, pp. 377-400) (project muse)Perhaps because of the rigidity of its amending process, the U.S. Constitution is also characterized by interpretive fluidity. This characteristic stems not only from the broad, indeterminate language in which most constitutional provisions are written but also from the willingness of courts to exercise the power of judicial review in order to derive more policy-specific rules from those provisions. Although the U.S. Supreme Court established the constitutionality of judicial review in 1803, 34 the interpretive fluidity of the U.S. Constitution has been most evident since 1954. Indeed, between 1889 and 1953 the Court overturned on average about one act of Congress and seven state laws every year. By contrast, since 1954 the judicial nullification rate has approximately doubled to almost two acts of Congress and twelve state laws per year. 35 Especially throughout the 1960s, litigants took advantage of judicial openness toward the Constitution's interpretive fluidity to persuade U.S. courts to participate actively in shaping and administering policy in areas such as zoning and land-use planning, housing, social welfare, transportation, education, and the operation of complex institutions like prisons and mental health facilities. 36 While this may make the document's rigid amending process less burdensome on the constitutional order, the ability and willingness of courts to extend formal rules in unexpected directions heightens redistributive indeterminacy. Finally, both the rigid amending process and the interpretive fluidity of the U.S. Constitution generate a high degree of institutional inclusiveness. On the one hand, interpretive fluidity provides society-based actors with a wide range of opportunities to institutionalize specific policy preferences by manipulating and transforming formal constitutional rules through litigation. Interpretive fluidity promotes institutional [End Page 395] inclusiveness by allowing society-based actors to alter the policy impact of constitutional rules without the constraints imposed by the formal amending process. On the other hand, the requirement that ratification succeed in eighty-seven legislative chambers unconstrained by strict party discipline provides numerous points of influence for social

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ERDMANN TSDC CONCON CPactors wary of the policy consequences of proposed amendments. The institutional inclusiveness of U.S. constitutional politics thus provides both incentives to oppose constitutional change and the means of carrying out that opposition successfully.AFF ANSWER: CONSTITUTIONAL AMENDMENT DOESN’T ALWAYS WORK.Worthen 04 <Kevin J. (Professor of Law and Associate Dean, J. Reuben Clark Law School, Brigham Young University), BYO Journal of Public Law, “Same-Sex Marriage Symposium Issue: Who Decides and What Difference Does It Make?: Defining Marriage in “Our Democratic, Federal Republic,” 18 BYU J. Pub. L. 273, 2004, lexis>Still, resolving the issue by federal constitutional amendment would run counter to some of the classic republican features underlying that system in ways that could undermine both those norms, as well as the long-term viability of the attempted solution. Our nation's experience with constitutionally-imposed prohibition demonstrates how this could occur. The constitutional amendment outlawing alcoholic beverages throughout the country n90 was at base a value judgment driven in part by the belief that abstinence from alcohol was essential to the enjoyment of "life in the whole, the good, and the beautiful." n91 As evidenced by the passage of the amendment, there was at least superficial supermajoritarian support for this vision of the good life. Yet, there was not a sufficient level of support to induce the kind of voluntary observance of the law that is required in a free republic. As a result, federal enforcement efforts increased dramatically, n93 And ultimately, without local community support in several areas, n94 the experiment failed, notwithstanding the apparent nationwide [*296] support for the proposition. n95 As one scholar concluded, one lesson from the experience is that liquor control cannot succeed without approval of the local communities. n97 that is best solved at a state or local level. By 1933, the vast majority of Americans apparently agreed with this conclusion, for the twenty-first amendment not only repealed the eighteenth, it also expressly (though awkwardly) n98 made clear that states have more control over the issue than they previously had, n99 seemingly sending a discouraging message to any who might wish to revive the national experiment through normal legislative means.

THE ACT OF THE COUNTERPLAN DESTROYS THE CONSTITUTION AND CAUSES TYRANNY AND FACTIONALISMSeidman and Sloan 99 Louis Mchael Seidman Professor of Law, Georgetown University Law Center, and Virginia E. Sloan, executive director of the Constitution Project, 1999 Great and Extraordinary Occasions, p. 12-13The force of the Constitution depends on our ability to see it as something that stands above and outside of day-to-day politics. The very idea of a constitution turns on the separation of the legal and the political realms. The Constitution sets up the framework of govern¬ment. It also sets forth fundamental political ideals—equality, representation, and individual liberties—that limit the actions of a temporary majority. This is our higher law. All the rest is left to day-to-day politics. Those who lose in the short run of ordinary politics obey the winners out of respect for the long-run rules and bound¬aries set forth in the Constitution. Without such respect for the constitutional framework, the peaceful operation of ordinary politics would degenerate into fractious war. Accordingly, the Constitution should not be amended to solve problems that can be addressed through other means, including federal or state legislation or state constitutional amendments. An amendment that is perceived as a surrogate for ordinary legislation or executive action breaks down the boundary between law and politics that is so important to maintaining broad respect for the Constitution. The more the Constitution is filled with specific directives, the more it resembles ordinary legislation. And the more the Constitution looks like ordinary legislation, the less it looks like a fundamental charter of government, and the less people will respect it.

THE COUNTERPLAN DESTROYS DEMOCRACYSeidman and Sloan 99 Louis Mchael Seidman Professor of Law, Georgetown University Law Center, and Virginia E. Sloan, executive director of the Constitution Project, 1999 Great and Extraordinary Occasions, p. 12-13One need not determine when majority rule should trump minority rights to see the problem with amendments that do no more than entrench majority preferences against future change. Amendments of this sort can be justified by neither majoritarianism nor a commitment to individual rights. On the one hand, they restrict the scope of democratic participation by future generations. On the other, they entrench the will of a current majority as against minority dissenters. Amendments of this sort should not be confused with power-granting amendments. To make possible ordinary legislation, favored by a current majority, it is sometimes necessary to enact amendments that eliminate constitutional barriers to its passage. For example, the Sixteenth Amendment eliminated a constitutional obstacle to the enactment of a federal income tax, and the Fourteenth Amendment eliminated federalism objections to civil rights legislation. Such amendments may be legitimate when they widen the scope of democratic participation, although, as noted above, they may also raise difficult issues regarding the appropriate trade-off between majority control and minority rights. In contrast, amendments that merely entrench majority social or economic preferences against future change make the system less rather than more democratic. They narrow the space for future democratic deliberation and sometimes trample the rights of vulnerable individuals. It is a perversion of the Constitution's great purposes to use the amendment process as a substitute for ordinary legislative processes that are fully available to groups proposing popular changes and will be equally available to future majorities that may take a different view.

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ERDMANN TSDC CONCON CPA CONGRESSIONAL AMENDMENT USES MORE POLITICAL CAPITAL THAN THE PLANSeidman and Sloan 99 Louis Mchael Seidman Professor of Law, Georgetown University Law Center, and Virginia E. Sloan, executive director of the Constitution Project, 1999 Great and Extraordinary Occasions, p. 4-5First, when the Prohibition Amendment was adopted in 1919, many Americans thought that it embodied sensible social policy. Yet within a short time, there was broad agreement that the experiment had failed, in part because enforcing it proved enor¬mously expensive in terms of dollars and social cost. Had Prohibition advocates been content to implement their policy by"great and extraordinary occasions" legislation, those laws could have been readily modified or repealed when the problems became apparent. Instead, the coun-try had to undergo the arduous and time-consuming process of amending the Constitution to undo the first change. This is an experience we should be eager not to repeat. The second example might have had far more serious conse¬quences. On the eve of the Civil War, both Houses of Congress adopted an amendment that would have guaranteed the proper¬ty interest of slaveholders in their slaves and would have forever prohibited repeal of the amendment. Fortunately, the proposed amendment was overtaken by events and never ratified by the states. Had it become law, the result would have been a consti¬tutional calamity. Finally, in our own time, there is the failed effort to add to the Constitution an equal rights amendment, prohibiting denial or abridgment of rights on account of sex. Within three months of congressional passage in 1972, twenty states had ratified the amendment. Thereafter, the process slowed, and even though Congress extended the deadline, supporters ultimately fell short of the three-fourths of the states necessary for ratification. The struggle for and against ratification produced much dissension and consumed a great deal of political energy. Yet today, even some of the amendment's former supporters would concede that it may not have been necessary. Moreover, the amendment would have added to the Constitution a controversial and broadly worded provision of uncertain and contested meaning, with the Supreme Court given the unenviable job of providing it content. Instead of years of judicial wrangling concerning its application, we have seen Congress pass ordinary legislation, and the Court engage in the familiar process of explicating existing constitu¬tional and statutory text, to achieve many of the goals of the amendment's proponents. This process has been more sensitive and flexible, while also less contentious and divisive, than what we could have expected had the amendment become law.

THE COUNTERPLAN ON ITS FACE DESTROYS THE CREDIBILITY OF THE CONSTITUTION – YOU HAVE AN OBLIGATION AS A POLICYMAKER TO REJECT ITSeidman and Sloan 99 Louis Mchael Seidman Professor of Law, Georgetown University Law Center, and Virginia E. Sloan, executive director of the Constitution Project, 1999 Great and Extraordinary Occasions, p. 9-10James Madison, one of the principal architects of Article V, cau¬tioned against making the Constitution "too mutable" by making constitutional amendment too easy. Hence his insistence that any con¬stitutional amendment command not only majority, but supermajority, support. Implicit in Madison's caution is the view that stability is a key virtue of our Constitution and that excessive "mutability" would undercut one of the main reasons for having a constitution in the first place. As Chief Justice John Marshall observed in McCulloch v. Maryland, the Constitution was "intended to endure for ages to come." Similarly, in his prophetic dissent in Lochner v. New York, Justice Oliver Wendell Holmes cautioned that the Constitution ought not be read to "embody a particular economic theory" that might be fashionable in a particular generation. It is crucial to our constitu¬tional enterprise to preserve public confidence—over succeeding generations—in the stability of the basic constitutional structure. Thus, the Constitution should not be amended solely on the basis of short-term political considerations. Of course, no one can be cer¬tain whether future generations will come to see a policy as merely evanescent or as truly fundamental. Still, legislators have an obligation to do their best to avoid

amendments that are no more than part of a momentary political bargain, likely to become obsolete as the social and political premises underlying their passage wither or collapse. To be enduring, constitutional amendments should usually be cast, like the Constitution itself, in general terms. Both powers and rights are set forth in our basic document in broad and open-ended language. To quote Marshall in McCulloch again, an enduring Constitution "requires that only its great outlines should be marked," with its "minor ingredients" determined later through judicial inter-pretation in each succeeding generation. Of course, sometimes speci¬ficity will be necessary, as in changing the date of the presidential inauguration. But in general, the nature of our Constitution is violated if amendments are too specific in the sense that they reflect only the immediate concerns of one generation, or if they set forth specifics more appropriate in an implementing statute. To illustrate this point, contrast the experience of the state con¬stitutions with our sparse tradition of federal constitutional amend¬ments. While the federal Constitution has been amended only twenty-seven times in more than two hundred years, the fifty state constitutions have had a total in excess of six thousand amendments added to them.6 Many are the products of interest group politics and are characteristic of ordinary legislation. State constitutions thus suf¬fer from what Marshall called "the prolixity of a legal code"—a vice he praised the federal Constitution for avoiding.7 Even when amendments are not overly detailed, they may be inap¬propriate because they focus on matters of only short-term concern. For example, consider various proposals that seek to carve specific new exceptions out of the broad concept of freedom of speech set forth in the First Amendment. The proposed flag desecration amendment would rewrite the Constitution to say that while the government generally may not prohibit speech based on dislike of its message, it may do so in the case of flag desecraters. The proposed campaign finance amendment would alter the First Amendment to say that the quantity of speech may never be diminished—except in modern election campaigns. Each of these amendments is a response to contemporary polit¬ical pressures. Future generations, like Americans today, can easily perceive the broad purposes and enduring legacies underlying the majestic generalities of our original guarantee of freedom of speech: the quest for truth, for self-government,

and for individual liberty. But future generations may not understand, let alone revere, the motiva¬tions behind a flag desecration or campaign finance amendment. Such particularized amendments may instead be perceived as the political victory of one faction in a particular historical moment. Flag dese¬cration is not an immortal form of political protest; we cannot know whether political dissidents will have the slightest interest in this ges¬ture generations from now. Similarly, the campaign tactics used by candidates today might change in ways that we cannot now imagine as we enter an age of instantaneous global communication over new electronic and digital media. Thus, there may be legitimate questions about the enduring nature of the perceived problem, as well as about the proposed solution. In general, we should not embed in the Constitution one generation's highly particular response to problems that a later generation might view as ephemeral. To add such transient amendments to the Constitution trivializes and undermines popular respect for a

docu¬ment that was intended to endure for the ages.

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ERDMANN TSDC CONCON CPTHE FOUNDATION OF THE CONSTITUTION IS THAT IT GUIDES THE CREATION OF POLICY AND NOT POLICY ITSELF – THE COUNTERPLAN UNDERMINES THE CONSTITUTION IN ITS ENTIRETYSeidman and Sloan 99 Louis Mchael Seidman Professor of Law, Georgetown University Law Center, and Virginia E. Sloan, executive director of the Constitution Project, 1999 Great and Extraordinary Occasions, p. vii-ixThe nation's Founders purposely wrote a Constitution that would be difficult to amend. They believed that our nation had to be based on a stable constitutional structure that would create respect for the rule of law, and thus foresaw a limited need for amendments. James Madison, in The Federalist No. 49, argued that the U.S. Constitution should be amended only on "great and extraordinary occasions." And indeed, this nation has followed his advice, proceed¬ing with extreme caution in altering its founding charter. Since the ratification of the U.S. Constitution and Bill of Rights over two hun¬dred years ago, only seventeen proposed amendments have received the necessary congressional supermajorities and been ratified by three-fourths of the states, thus making them a part of our Constitution. In recent years, however, there has been an explosion in the num¬ber of proposed constitutional amendments on almost every conceiv¬able topic. Amendment proposals now often seem to be the favored first-step panacea for all societal ills. These proposals frequently deal with matters of social policy that are more appropriately the subject of legislation than of constitutional amendment. In the 105th Congress alone, nine amendments—on flag desecration, a balanced budget, term limits, tax increases, facilitation of state-proposed constitutional amendments, victims' rights, religious equality, the electoral college, and campaign finance—received subcommittee, committee, or floor consideration. The 106th Congress promises more of the same. In contrast to the fundamentally conservative approach envi¬sioned by the Founders, the current spate of constitutional amend¬ments seems to stem from the unfounded notion that the Constitution is an obstacle to the current public interest and that our most vexing problems can be solved easily by changing the principles that have guided the nation for more than two hundred years. Our Constitution is durable precisely because it sets up a delicately balanced system, based upon enduring principles, for governing a complex and diverse country. While briefer than that of any other country's charter, it permits us a wide range of policy choices, leaving it to us, as members of a democratic republic, to debate and judge the wisdom of oppos¬ing ideas and to offer solutions that meet our present needs without locking us into a policy choice for all time. And yet, the Constitution has also been an effective constraint on the exercise of government power, enabling a wise people to pursue the wishes of the majority while still holding essential individual liberties sacred. Experience demonstrates that a constitution cannot solve all societal ills, and that "we the people" must tackle these issues head-on. Those who fail to make hard but necessary legislative choices and instead falsely imply to the American people that constitutional amendments will solve our country's problems only increase the public cynicism that is often the real obstacle to solving these problems.

REJECT THE COUNTERPLAN – IT VIOLATES THE CONSTITUTIONSeidman and Sloan 99 Louis Mchael Seidman Professor of Law, Georgetown University Law Center, and Virginia E. Sloan, executive director of the Constitution Project, 1999 Great and Extraordinary Occasions, p. 5The United States Constitution is not a theoretical enterprise. It is a legal document that spells out a coherent approach to government power and processes while also guaranteeing our most fundamental rights. More than two centuries of experience underscore the wis¬dom of continuing that approach. The addition of purely aspirational statements, designed solely for symbolic effect, would lead interest groups to attempt to write their own special concerns into the Constitution. It follows that advocates of amendments should think carefully about how the amendments will be enforced. In Common Sense, Thomas Paine expressed the revolutionary notion that was the founding wisdom of our nation: in America, "the law is King." Everyone, regard¬less of social station or political rank, must follow the law. A provision susceptible of being ignored because no one can require its observance permits the kind of executive or legislative lawlessness that our founders wished to prevent. A provision that may be willfully ignored when those charged with observing it find the result inconvenient or undesirable undermines the rule of law, the government's own legitimacy, and the Constitution's special stature in our society.

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ERDMANN TSDC CONCON CPXO 12333 ANSWERS

CONGRESS DOES NOT HAVE THE AUTHORITY TO OVERTURN EXECUTIVE ORDER 12333Farivar 2014 (Cyrus Farivar / Cyrus is the Senior Business Editor at Ars Technica, and is also a radio producer and author. His first book, The Internet of Elsewhere, was published in April 2011..New docs show how Reagan-era executive order unbounded NSA http://arstechnica.com/tech-policy/2014/09/new-docs-show-how-reagan-era-executive-order-unbounded-nsa/)Included in this set of documents is a previously released 74-page memo (dated May 6, 2004) to the attorney general to outline the legality of the President’s Surveillance Program. The older, publicly released version has substantial redactions. The newly released version unredacts the already known name of the program, "Stellar Wind." Both versions, which appear to be otherwise identical, also contain this noteworthy section: The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.

CONGRESS HAS NO AUTHORITY OVER EXECUTIVE ORDER 12333Abdo 14 ( Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project SEPTEMBER 29, 2014 New Documents Shed Light on One of the NSA's Most Powerful Tools https://www.aclu.org/blog/new-documents-shed-light-one-nsas-most-powerful-tools?redirect=blog/national-security/new-documents-shed-light-one-nsas-most-powerful-tools)There's a key difference between EO 12333 and the two main legal authorities that have been the focus of the public debate — Section 215 of the Patriot Act and the FISA Amendments Act, which the government relies on to justify the bulk collection of Americans' phone records and the PRISM program. Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts. That's why uncovering the government's secret interpretations of the order is so important. We've already seen that the NSA has taken a "collect it all" mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333.

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