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Precedent for its opposite also stretches all the way back to the founders. And before, both ways, lest we succumb to the hagiographic portrayal of the founders

Precedent for its opposite also stretches all the way back to the founders. And before, both ways, lest we succumb to the hagiographic portrayal of the founders as supermen who came up with every idea in the constitution totally by themselves. As long as we interpret "political" vs. "legal" as really meaning judicial vs. congressional, this is not a bad argument, but precedent is not the decisive factor. Also, remember that this is the same court in which three justices (Gorsuch/Thomas/Kavanaugh in Kisor and Thomas again in Gamble) have openly called for ignoring stare decisis when it doesn't suit their political objectives. For them to cite precedent and/or judicial humility in any decision at this point is dishonest.

tptacek 7y ago
I don't believe that the framers were supermen, but I also don't know that it's the Supreme Court that's meant to overturn the fundamental decisions the founders made.
- notacoward 7y ago
  > I also don't know that it's the Supreme Court that's meant to overturn That's exactly the issue I was getting at. Equal representation is clearly a constitutional issue, which it is the court's duty to rule on, and yet the constitution does not explicitly address districting issues. Would defining a standard to determine whether a districting plan meets the constitutional requirement be within the court's purview? Clearly yes, because that kind of standard-setting is a significant part of what they have always done. It's right in the introduction to the Wikipedia list of landmark decisions. "establishing a "test" or a measurable standard that can be applied by courts in future decisions." https://en.wikipedia.org/wiki/List_of_landmark_court_decisions_in_the_United_States https://en.wikipedia.org/wiki/List_of_landmark_court_decisio... Declining to set such a standard because such things are delegated to the states would have been reasonable. Declining to set such a standard because it's a "political" - i.e. legislative - responsibility is also reasonable. But "because the constitution" doesn't work because the constitution is mute on the specifics on which the court was asked to rule. They can't overturn what doesn't exist.
rayiner 7y ago
People don't look for the founding intent because they think the founders were supermen. They do it because, at one point, the nation collectively agreed to be bound by the document the founders wrote. (I.e. I don't trust you and think your ideas are stupid, and I'm only willing to go along with them if I'm bound to and have no choice.)
- notacoward 7y ago
  If by "people" you mean judges and such then I think you're right. If "people" means people who post about political topics on the internet ... umm, not so much. It might not be used in legal arguments, but the belief in founders as saints or supermen is pretty widespread in US society generally.

tptacek 7y ago

I don't believe that the framers were supermen, but I also don't know that it's the Supreme Court that's meant to overturn the fundamental decisions the founders made.

notacoward 7y ago
> I also don't know that it's the Supreme Court that's meant to overturn That's exactly the issue I was getting at. Equal representation is clearly a constitutional issue, which it is the court's duty to rule on, and yet the constitution does not explicitly address districting issues. Would defining a standard to determine whether a districting plan meets the constitutional requirement be within the court's purview? Clearly yes, because that kind of standard-setting is a significant part of what they have always done. It's right in the introduction to the Wikipedia list of landmark decisions. "establishing a "test" or a measurable standard that can be applied by courts in future decisions." https://en.wikipedia.org/wiki/List_of_landmark_court_decisions_in_the_United_States https://en.wikipedia.org/wiki/List_of_landmark_court_decisio... Declining to set such a standard because such things are delegated to the states would have been reasonable. Declining to set such a standard because it's a "political" - i.e. legislative - responsibility is also reasonable. But "because the constitution" doesn't work because the constitution is mute on the specifics on which the court was asked to rule. They can't overturn what doesn't exist.

rayiner 7y ago

People don't look for the founding intent because they think the founders were supermen. They do it because, at one point, the nation collectively agreed to be bound by the document the founders wrote. (I.e. I don't trust you and think your ideas are stupid, and I'm only willing to go along with them if I'm bound to and have no choice.)

notacoward 7y ago
If by "people" you mean judges and such then I think you're right. If "people" means people who post about political topics on the internet ... umm, not so much. It might not be used in legal arguments, but the belief in founders as saints or supermen is pretty widespread in US society generally.