Schwarzenegger 2020: Equal Opportunity to Govern

[Icelander]

Originally Posted by Anthony

Constitutional change has not happened through the courts. The boundaries of what's what is considered constitutional has changed, but not in a way that obviously contradicts the constitution.

Dredd Scott v. Sandford doesn't explicitly contradict the Constitution?

That's an example chosen because it is presumably not controversial among many readers, as changing social mores mean that more or less everyone reading this will agree that the court legislating was a bad thing. It's important to realize that modern judges are not a different species, however, and continue to be influenced by public opinion and politics as much or more than the actual law.

From a legal standpoint, even today, a lot of the currently accepted legal precedents have similar relations to the actual text of the Constitution as Dredd Scott v. Sandford. It's just because the majority strongly agrees with them, few people object to the fact that what the court is doing is legislation, not interpretation.

Relatively few countries have Constitutions which have much to do with how their system of government actually works. That's a bad thing from a philosophical and jurisprudential point of view, but from a practical point of view, it seems to be just human nature.