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Constitutional law, like any ancient code base, has picked up some serious cruft. It is impossible to divine from the text what it means. Legal scholars don't

Constitutional law, like any ancient code base, has picked up some serious cruft. It is impossible to divine from the text what it means. Legal scholars don't even agree about basic questions like "can a professor publish a paper that lacks citations to relevant work, without violating securities law?" [1]. The odds of getting useful conlaw analysis on HN are nill. That being said, we shouldn't always be looking to the COTUS to save us. Congress exists to make laws. If we want this practice banned, we need to enact a law to ban it. [1] https://corpgov.law.harvard.edu/2014/12/15/sec-commissioner-law-professor-wrongfully-accuse-srp-of-securities-fraud/ https://corpgov.law.harvard.edu/2014/12/15/sec-commissioner-...

giancarlostoro 6y ago
> It is impossible to divine from the text what it means. I don't buy that though, it wasn't written in Ancient Koine Greek or Hebrew on lost tablets, heck it wasn't written that long ago compared to ancient texts and scriptures! We've got books and legal cases to reference and confirm what was meant, we even know all about the first cases handled by the Supreme Court. The moment people start to interpret instead of reading it literally and based upon the historical context (seeking refuge from tyranny) is the moment they get confused and get the whole thing wrong.
- deleted 6y ago
  [deleted]
- marcus_holmes 6y ago
  I'm always curious about this. Coming from a country with no Constitution - what makes this document so revered? Why does the opinion of a few dozen landed gentry from a few hundred years ago supercede all modern legal and political opinion and research?
  - donavanm 6y ago
    They dont, amendments exist. Its entirely possible for the states to agree to new rules that will supersede the previous law of the land. They do because they establish basic strictures on the federal government itself. Critically the constitution, and bill of rights, outline what powers are granted to the federal government and which are expressly reserved for the states and citizens. Its the inverse of many (most?) countries that Ive seen. The fed government was granted limited, specific, powers by its constituents. The states and citizens do not derive their rights & powers from the federal government.
  - claytongulick 6y ago
    Because people, fundamentally, don't change- and the problems addressed by the Constitution are timeless, as well, arguably, are the solutions?
  - kd5bjo 6y ago
    The conceit is that it’s a written contract between the citizenry, the state governments, and the federal government that sets out what each is and isn’t allowed to do. It has provisions to be altered by the parties should it be found wanting which have been successfully used several times, despite requiring a supermajority. The idea is to establish the rules of the political game by consensus, as a stabilizing influence on a government that can have its membership completely replaced every 6 years. Like any other contract, when there’s a dispute, the first thing to look at is what was actually agreed upon and then try to map that onto whatever situation you find yourself in. Generally, the courts in the US view themselves as arbitrators: their job is to determine how the text of the law (including the Constitution) maps onto the many messy edge cases that come up in real life in the fairest way they can. That means, in part, making determinations consistently between various cases; this is where case law gets its authority. In theory, political and moral concerns are not in the purview of the courts, but instead are be encoded in the written laws they interpret. Modern legal opinions need the endorsement of enough legislators to be enshrined at the appopriate level of law before they can be enforced; it makes for slow progress, but hopefully avoids a lot of wrong turns.
  - kmonsen 6y ago
    Because the us is a federation between widely different states. California and Alabama can agree on very little so they need the constitution to keep peace and the union. Is politics is completely blocked these days, so most forward movements are by executive orders and appointing judges that can find creative ways to make your political agenda happening without having to do it in the senate.
whymauri 6y ago
To add to this, Linda Greenhouse recently wrote a good article on the internal struggle the SCOTUS is facing w.r.t. "legal cruft".[0] [0] https://www.nytimes.com/2020/04/23/opinion/supreme-court-precedent.html https://www.nytimes.com/2020/04/23/opinion/supreme-court-pre...

giancarlostoro 6y ago

> It is impossible to divine from the text what it means. I don't buy that though, it wasn't written in Ancient Koine Greek or Hebrew on lost tablets, heck it wasn't written that long ago compared to ancient texts and scriptures! We've got books and legal cases to reference and confirm what was meant, we even know all about the first cases handled by the Supreme Court. The moment people start to interpret instead of reading it literally and based upon the historical context (seeking refuge from tyranny) is the moment they get confused and get the whole thing wrong.

deleted 6y ago
[deleted]
marcus_holmes 6y ago
I'm always curious about this. Coming from a country with no Constitution - what makes this document so revered? Why does the opinion of a few dozen landed gentry from a few hundred years ago supercede all modern legal and political opinion and research?
- donavanm 6y ago
  They dont, amendments exist. Its entirely possible for the states to agree to new rules that will supersede the previous law of the land. They do because they establish basic strictures on the federal government itself. Critically the constitution, and bill of rights, outline what powers are granted to the federal government and which are expressly reserved for the states and citizens. Its the inverse of many (most?) countries that Ive seen. The fed government was granted limited, specific, powers by its constituents. The states and citizens do not derive their rights & powers from the federal government.
- claytongulick 6y ago
  Because people, fundamentally, don't change- and the problems addressed by the Constitution are timeless, as well, arguably, are the solutions?
- kd5bjo 6y ago
  The conceit is that it’s a written contract between the citizenry, the state governments, and the federal government that sets out what each is and isn’t allowed to do. It has provisions to be altered by the parties should it be found wanting which have been successfully used several times, despite requiring a supermajority. The idea is to establish the rules of the political game by consensus, as a stabilizing influence on a government that can have its membership completely replaced every 6 years. Like any other contract, when there’s a dispute, the first thing to look at is what was actually agreed upon and then try to map that onto whatever situation you find yourself in. Generally, the courts in the US view themselves as arbitrators: their job is to determine how the text of the law (including the Constitution) maps onto the many messy edge cases that come up in real life in the fairest way they can. That means, in part, making determinations consistently between various cases; this is where case law gets its authority. In theory, political and moral concerns are not in the purview of the courts, but instead are be encoded in the written laws they interpret. Modern legal opinions need the endorsement of enough legislators to be enshrined at the appopriate level of law before they can be enforced; it makes for slow progress, but hopefully avoids a lot of wrong turns.
- kmonsen 6y ago
  Because the us is a federation between widely different states. California and Alabama can agree on very little so they need the constitution to keep peace and the union. Is politics is completely blocked these days, so most forward movements are by executive orders and appointing judges that can find creative ways to make your political agenda happening without having to do it in the senate.

whymauri 6y ago

To add to this, Linda Greenhouse recently wrote a good article on the internal struggle the SCOTUS is facing w.r.t. "legal cruft".[0] [0] https://www.nytimes.com/2020/04/23/opinion/supreme-court-precedent.html https://www.nytimes.com/2020/04/23/opinion/supreme-court-pre...