Of course the courts have in fact been making those decisions, but that doesn't mean it's been working well. The electoral college has also been doing its thing for centuries. But the duration does not speak to its competence as a system. Not in the least.

Consider the following 3 words: trustworthy, reliable, and predictable. We don't often realize it, but aside from a few subtle differences in connotation and context, those words are almost perfectly interchangeable.

We want our courts to be trustworthy and reliable right? Well then, we also want them to be predictable.

The most predictable disciplines are mathematics and software / programming, so it's worth drawing inspiration from them. I say those disciplines are predictable because, for example, if you gave two mathematicians the same equation, you'd expect them to agree on the solution. That is, they can both predict the other's answer. And if you showed two software developers the same program code, they should both be able to make the same conclusions about what the software will do.

We want our courts to work that way. Of course, real life is messier than a math problem, but the goal of a legal system should be to make its execution as predictable - and therefore as trustworthy - as possible.

But so going back to math and software, the secret to their predictability is the fact that all of their assumptions are named at the beginning. In math, for example, we define what we mean when we say words like "integer", "addition", and "subtraction". And those definitions provide an unambiguous set of criteria from which to judge future claims.

But we haven't done that with our legal system. The Constitution, for example, never defines what a "religion" actually is. Its definition is left as an unstated assumption. And an additional assumption most people seem to make is that the freedom of religious practice granted by the first amendment must obviously not be invoked in extreme cases where someone else's well-being is at play. But that assumption is never explicitly stated within the amendment itself.

Most people don't seem to be bothered by this, and think it's a matter of "common sense", but if you ask any number of different people, you'll get as many different answers on how to actually apply the common sense. And that's no way to run a predictable and trustworthy legal system. And in my opinion, it's dreadfully naïve and foolish and irresponsible not to try to improve the situation. Unstated assumptions lead to unpredictable - and therefore capricious and untrustworthy - outcomes.

Now I suspect people's ultimate sense of "common sense" is in fact similar enough that we could actually agree on something if we sat down and talked about it. But we do have to talk about it, and agree on something. And then once we do, we need to put it into the constitution for all to see. That's the responsible thing to do.

So for example, I might suggest changing the amendment to something like this: "Congress shall make no law prohibiting the freedom of thought, speech, action, or assembly of any citizen or group of citizens in their right to pursue happiness, except insofar as those actions may infringe upon other citizens' right to the same."

The courts would still, of course, have to make the final decisions on how to interpret that into law. But it puts it in terms of our right to pursue happiness, which I think is something we could all agree is "common" sense. And since it would be explicitly stated in the Constitution, it would make for more predictable rulings by the courts.

And since it leaves out the word "religion" altogether, it does not require us to make any additional assumptions about what that word means, or who it protects. It protects all people's right to act in whatever ways makes sense to them.

Which is what I assume we really wanted from the first amendment all along.