Your humble Blog Goliard was disappointed, but not surprised, by the utterly lawless decision issued last week in Perry v. Schwarzenegger. Plenty of people have had plenty to say about it in reaction, and there’s little need to add to it here. One thing that does strike one, however, is how much things have changed since 1971, when the 26th Amendment was ratified.

The marriage of same-sex couples is a notion which virtually every human being who has ever lived up until about five minutes ago—including the vast majority of homosexuals up until about fifteen minutes ago—regarded as an absurd impossibility, on the exceedingly rare occasions they had cause to regard the idea at all. If it is possible for courts to now rule that the Constitution affirmatively requires the states, God knoweth how, to marry same-sex couples, then how many of the post-Bill of Rights Amendments would today’s politicians (both the ones in Congress, and the ones wearing robes) have found necessary and bothered to enact?

• 13th: Slavery is self-evidently evil. If that can’t be declared unconstitutional based on Kennedyesque meditations on the nature of liberty and the sheer wrongness of a particular violation of it, then nothing can.


• 15th, 19th, 24th, 26th: No contemporary court would need an explicit Constitutional remit to determine that universal adult suffrage was essential to American (and even global) principles of democracy, or to order Federal and state governments to implement it.


• 18th, 21st: In a world where Wickard v. Filburn is good law, it seems flat-out bizarre that Amendments were thought needed to enable Congress to ban, un-ban, or otherwise regulate a controlled substance. Heck, with the latitude Federal agencies have nowadays (see the EPA’s CO₂ power grab), it’s quaint even to think that a specific statute like the Volstead Act would be strictly necessary today.


• 16th: If the Warren Court was able to abolish the death penalty despite explicit reference to capital crimes in the Constitution (cf. Amendment V), then I’d give at least even money that today’s courts would let Congress enact an income tax by simple statute despite what is written in Art. I Sec. 9.


• 23rd: Plenty of people on Capitol Hill seem to be perfectly okay with the idea of giving D.C. seats in Congress without an Amendment. Why wouldn’t that also hold true for allocating it electoral votes?

Note also the quaint final Section added to many of these Amendments: “The Congress shall have power to enforce this article by appropriate legislation.” Yeah, like Congress has needed, or cared about, express grants of powers these past 70 years or so…