Posted by Eugene Volokh:
And Then There Are These Arguments
(as opposed to the thoughtful arguments I tried to respond to below):
So you think the Bill of Rights is not "Holy Writ?" Nice to see a
law professor that doesn't believe in the law.
I would have thought it unnecessary to respond to this argument, but
my rule of thumb is that if one person has this view, others do, too.
The answer, of course, is that while the law should be followed, it
may sometimes be amended. That's the difference between law that is
good and important but potentially flawed, and "Holy Writ."
The Constitution has been amended 18 times (once for the first 10, and
then for the remaining 17, though one can of course do the count in
different ways). Some of the amendments were specifically intended to
repeal portions of the Constitution. What's more, the Framers
deliberately created a mechanism through which the Constitution can be
amended. They themselves realized that the Constitution was not Holy
Writ. And the same of course goes for the first 10 amendments of the
Constitution. (See [1]here for a post on how parts of the Bill of
Rights -- or at least the Bill of Rights as the Supreme Court had
interpreted it -- have already been amended or probably amended.)
Naturally, none of this speaks to the wisdom of any particular
amendment, or to the possible dangers that one amendment will open the
door to other, worse amendments (dangers that I think tend to be
overstated, though may in some situations be quite plausible). But it
does respond, I think, to the glib or pious sanctification of the
Constitution or the Bill of Rights as unamendable Sacred Law that we
sometimes hear.
References
1. http://volokh.com/archives/archive_2004_05_16-2004_05_22.shtml#1085184062
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