4 ms·

The mythology around the American Constitution is another example of deeply ingrained magical thinking. A group of holy men came together to produce a perfect

by pavlov 6y ago

The mythology around the American Constitution is another example of deeply ingrained magical thinking. A group of holy men came together to produce a perfect piece of secular scripture whose meaning "originalists" try to extract from outdated verbiage. Anywhere else in the world, having to rely on 250-year-old legal code for important present-day judicial decisions would be considered a deep failure of lawmaking.

dternyak 6y ago
With this logic, most of the world is exhibiting deeply ingrained magical thinking by honoring 3000+ year old commandments like "You shall not murder". Just because an ideology is honored and held in high esteem by its adherents (and to steelman your argument - even in higher esteem than it may deserve) does not mean we have better alternatives to the ideology.
- ASalazarMX 6y ago
  That commandment is not the thing stopping people for murdering others, it's the legal system. I would go as far to say that the ten commandments are mostly absent in the decision-making process of most people, and hence quite obsolete.
  - bloodorange 6y ago
    Perhaps we could go even further and say that people are inherently not inclined to kill one another and the legal system only steps in when such exceptional events do occur. (Here, I'm only talking about murder and not what is a "tribe" attacking another, which happens even now. For instance, a nation invading and bombing another nation, drone-bombing wedding parties or religious extremists trying to take over a nation etc.)
    - ASalazarMX 6y ago
      The only way to test that assumption would be to legalize murder and see how many people killed others. It's a morbid scenario, but I wonder how many would take the opportunity to murder for revenge or personal gain.
      - treeman79 6y ago
        There was a post awhile ago about people who only avoid crimes because of fear of punishment. I think it was around 3% of the population. That’s a lot of people willing to hurt others
- PeterisP 6y ago
  The parent post argued about attributing special importance to the exact verbiage and intent as expressed in that 250 year old document. While we do still have laws prohbiting murder, we don't rely on Old Testament for guidance on what killing is permissible and what killing is murder, which details matter, and what shall the punishments be; we do consider the nuances expressed in that old document as obsolete and if people would try to make arguments about treating murder based on the nuances of how exactly Old Testament prescribes to handle murder (e.g. whether all murderers must get the death penalty as per Leviticus 24:19) then we would consider that as magical thinking and not really a valid argument.
SllX 6y ago
What the Constitution’s critics often miss is that it isn’t magic, it’s law, and as a piece of law the Constitution is neither a code (codified laws came later in America) nor is it exhaustive. It’s a starting point. But since it is law, and carries the force of law, then if you disagree with the law the way forward is clear: you change or amend the law. If there’s any magic, it’s that laymen critics don’t often understand it well enough to criticize it in an effective and useful manner that would lead to useful improvements or replacements. You can sit down at your computer and bang out 7 to 10 articles and call it a Constitution, but what choices would you make and why? What would be the ramifications of your changes and would they actually cause more harm than good compared to the status quo? The real magic is that if you put a gun to ten to fifty wisemen of the Present day, they probably couldn’t do much better and you would end up with a tweaked version of what we have because it turns out, they did a decent job of it back in 1789. No real magic, just forethought, debate, ambition and consideration for what has worked, what hasn’t and what is likely to work for the society in which they lived then and we live now. Anywhere else in the world is likely using the Common law, which goes back a thousand years or more, or a version of the Napoleonic codes modified to the present day or German civil code modified to the present day.
mopsi 6y ago
> A group of holy men came together to produce a perfect piece of secular scripture whose meaning "originalists" try to extract from outdated verbiage. Anywhere else in the world, having to rely on 250-year-old legal code for important present-day judicial decisions would be considered a deep failure of lawmaking. The core idea behind originalism is that agreements should be interpreted as they were understood at the time, and if something is impractical in modern day, then it should be changed through the legislative process with amendments. "Living Constitution" is far more speculative and magical. Somehow new meanings are discovered that no-one in the previous 250 years had seen in the text nor voted for. This undermines democracy.
- throw0101a 6y ago
  I find originalism kind of like the Protestant notion of sola scriptura: no where in the (Christian) Bible does it say that only the Bible can be the only way source of authority. No where in the US Constitution does it say originalism should be used. > Somehow new meanings are discovered that no-one in the previous 250 years had seen in the text nor voted for. Some argue that the (supposed) individual right of the 2A is like this: no where did it appear in legal discussions until 1960. Then the NRA (but not the pre-1977 NRA) started pushing it more. Looking in as a Canadian from the outside: it sure seems like things can be discovered or realized in a way they never were before.
tathougies 6y ago
This is nothing to do with originalism. Please don't strawman complicated viewpoints. > a deep failure of lawmaking. The real deep failure of lawmaking is telling millions of people what the rules are and then changing them because some elites decided that the proles were getting too successful.
rayiner 6y ago
You're missing the forest for the trees. "Originalism" generally comes into play because an activist has invoked the "250-year-old legal code" to achieve something by litigation that they can't achieve through lawmaking. Consider the example of abortion: https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx https://news.gallup.com/poll/235469/trimesters-key-abortion-.... While 60% of Americans believe abortion should generally be legal in the first trimester, just 28% think it should generally be legal in the second trimester (13 weeks+). (If you dig into the data, they think it should be illegal after that except to protect maternal life, fetal abnormalities, etc.) In fact, nearly every EU country generally prohibits abortion after 12-14 weeks. Under U.S. Supreme Court precedent (specifically, Roe and Casey) abortion cannot be prohibited before viability--usually around 24 weeks. Nearly all EU abortion law would be unconstitutional under American standards. In the U.S., therefore, the words written 250 years ago by the framers is deemed to prohibit the states from adopting abortion laws that would be entirely consistent with other advanced liberal democracies. Similar reasoning has been invoked to ban school prayer (which is mandated by statute in the U.K. and allowed in Germany and Italy) and government funding of religious education (which is common in the EU, and is a constitutional right in Germany, Belgium, etc.) The majority of Americans, however, still support things like school prayer. Again, a 250-year old document has been invoked to strike down laws and practices that are widespread in other advanced liberal democracies. When activists wield 250 year old words to strike down popular laws, people get very interested in exactly what those words mean! These conflicts tend to be more intense in the U.S. than elsewhere, because we're a country where the coasts are France and everywhere else is Poland. Originalism doesn't exist in Germany, but neither do cases like Roe where the Court invents new rights out of thin air. Social consensus is much higher in Germany. It's a little bit easier to amend the German Basic Law than the Constitution (2/3 vote in both houses versus 3/4 vote of the states) but the German Basic Law has been amended 62 times since 1949. The U.S. Constitution has been amended just 17 times since 1792.

by pavlov 6y ago

dternyak 6y ago

With this logic, most of the world is exhibiting deeply ingrained magical thinking by honoring 3000+ year old commandments like "You shall not murder". Just because an ideology is honored and held in high esteem by its adherents (and to steelman your argument - even in higher esteem than it may deserve) does not mean we have better alternatives to the ideology.

ASalazarMX 6y ago
That commandment is not the thing stopping people for murdering others, it's the legal system. I would go as far to say that the ten commandments are mostly absent in the decision-making process of most people, and hence quite obsolete.
- bloodorange 6y ago
  Perhaps we could go even further and say that people are inherently not inclined to kill one another and the legal system only steps in when such exceptional events do occur. (Here, I'm only talking about murder and not what is a "tribe" attacking another, which happens even now. For instance, a nation invading and bombing another nation, drone-bombing wedding parties or religious extremists trying to take over a nation etc.)
  - ASalazarMX 6y ago
    The only way to test that assumption would be to legalize murder and see how many people killed others. It's a morbid scenario, but I wonder how many would take the opportunity to murder for revenge or personal gain.
    - treeman79 6y ago
      There was a post awhile ago about people who only avoid crimes because of fear of punishment. I think it was around 3% of the population. That’s a lot of people willing to hurt others
PeterisP 6y ago
The parent post argued about attributing special importance to the exact verbiage and intent as expressed in that 250 year old document. While we do still have laws prohbiting murder, we don't rely on Old Testament for guidance on what killing is permissible and what killing is murder, which details matter, and what shall the punishments be; we do consider the nuances expressed in that old document as obsolete and if people would try to make arguments about treating murder based on the nuances of how exactly Old Testament prescribes to handle murder (e.g. whether all murderers must get the death penalty as per Leviticus 24:19) then we would consider that as magical thinking and not really a valid argument.

SllX 6y ago

What the Constitution’s critics often miss is that it isn’t magic, it’s law, and as a piece of law the Constitution is neither a code (codified laws came later in America) nor is it exhaustive. It’s a starting point. But since it is law, and carries the force of law, then if you disagree with the law the way forward is clear: you change or amend the law. If there’s any magic, it’s that laymen critics don’t often understand it well enough to criticize it in an effective and useful manner that would lead to useful improvements or replacements. You can sit down at your computer and bang out 7 to 10 articles and call it a Constitution, but what choices would you make and why? What would be the ramifications of your changes and would they actually cause more harm than good compared to the status quo? The real magic is that if you put a gun to ten to fifty wisemen of the Present day, they probably couldn’t do much better and you would end up with a tweaked version of what we have because it turns out, they did a decent job of it back in 1789. No real magic, just forethought, debate, ambition and consideration for what has worked, what hasn’t and what is likely to work for the society in which they lived then and we live now. Anywhere else in the world is likely using the Common law, which goes back a thousand years or more, or a version of the Napoleonic codes modified to the present day or German civil code modified to the present day.

mopsi 6y ago

> A group of holy men came together to produce a perfect piece of secular scripture whose meaning "originalists" try to extract from outdated verbiage. Anywhere else in the world, having to rely on 250-year-old legal code for important present-day judicial decisions would be considered a deep failure of lawmaking. The core idea behind originalism is that agreements should be interpreted as they were understood at the time, and if something is impractical in modern day, then it should be changed through the legislative process with amendments. "Living Constitution" is far more speculative and magical. Somehow new meanings are discovered that no-one in the previous 250 years had seen in the text nor voted for. This undermines democracy.

throw0101a 6y ago
I find originalism kind of like the Protestant notion of sola scriptura: no where in the (Christian) Bible does it say that only the Bible can be the only way source of authority. No where in the US Constitution does it say originalism should be used. > Somehow new meanings are discovered that no-one in the previous 250 years had seen in the text nor voted for. Some argue that the (supposed) individual right of the 2A is like this: no where did it appear in legal discussions until 1960. Then the NRA (but not the pre-1977 NRA) started pushing it more. Looking in as a Canadian from the outside: it sure seems like things can be discovered or realized in a way they never were before.

tathougies 6y ago

This is nothing to do with originalism. Please don't strawman complicated viewpoints. > a deep failure of lawmaking. The real deep failure of lawmaking is telling millions of people what the rules are and then changing them because some elites decided that the proles were getting too successful.

rayiner 6y ago

You're missing the forest for the trees. "Originalism" generally comes into play because an activist has invoked the "250-year-old legal code" to achieve something by litigation that they can't achieve through lawmaking. Consider the example of abortion: https://news.gallup.com/poll/235469/trimesters-key-abortion-views.aspx https://news.gallup.com/poll/235469/trimesters-key-abortion-.... While 60% of Americans believe abortion should generally be legal in the first trimester, just 28% think it should generally be legal in the second trimester (13 weeks+). (If you dig into the data, they think it should be illegal after that except to protect maternal life, fetal abnormalities, etc.) In fact, nearly every EU country generally prohibits abortion after 12-14 weeks. Under U.S. Supreme Court precedent (specifically, Roe and Casey) abortion cannot be prohibited before viability--usually around 24 weeks. Nearly all EU abortion law would be unconstitutional under American standards. In the U.S., therefore, the words written 250 years ago by the framers is deemed to prohibit the states from adopting abortion laws that would be entirely consistent with other advanced liberal democracies. Similar reasoning has been invoked to ban school prayer (which is mandated by statute in the U.K. and allowed in Germany and Italy) and government funding of religious education (which is common in the EU, and is a constitutional right in Germany, Belgium, etc.) The majority of Americans, however, still support things like school prayer. Again, a 250-year old document has been invoked to strike down laws and practices that are widespread in other advanced liberal democracies. When activists wield 250 year old words to strike down popular laws, people get very interested in exactly what those words mean! These conflicts tend to be more intense in the U.S. than elsewhere, because we're a country where the coasts are France and everywhere else is Poland. Originalism doesn't exist in Germany, but neither do cases like Roe where the Court invents new rights out of thin air. Social consensus is much higher in Germany. It's a little bit easier to amend the German Basic Law than the Constitution (2/3 vote in both houses versus 3/4 vote of the states) but the German Basic Law has been amended 62 times since 1949. The U.S. Constitution has been amended just 17 times since 1792.