Extraconsitutionally
Matt Barr, the New World Man, has a great piece on the changing attitude on Constitutional Amendments vs. Judicial Activism.
Be sure to read the rest, as it isn't long, and quite good.
A point I like to make about the last 35 years of constitution amendment avoidance is: In 1961, the 23rd Amendment was ratified, granting District of Columbia residents the right to vote in presidential elections. If it hadn't been, sometime in the last 35 years or so someone would have gone to federal court to argue that the constitution already guarantees D.C. residents the right to vote in presidential elections, without the necessity of actually amending the constitution. (The same if true of the 25th Amendment's guarantee of the right to vote in federal elections to citizens 18 years old and older.) But in the dark ages of the late 1950s and early 1960s, before Roe v. Wade etc., everyone signed on to the proposition that if the constitution didn't permit something, the constitution had to be amended. How quaint!
Be sure to read the rest, as it isn't long, and quite good.
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