5 ms·

The practical consequences sorta suck, but the concept of a narrow reading of the law, leaning on the legislature to actually, you know, legislate — we could us

The practical consequences sorta suck, but the concept of a narrow reading of the law, leaning on the legislature to actually, you know, legislate — we could use more of that.

jfengel 6y ago
I'd have more sympathy for that if the legislature hadn't been designed to not legislate. Passing legislation requires the approval of three bodies: the Senate, the House, and the President. That's before you add in the filibuster in the Senate, which sets a very high bar on its approval. For the Supreme Court to add a fourth check-and-balance means that legislation is practically impossible. There is an enormous pressure to not do anything. That feature is well-intended, to ensure the legislation is passed with due deliberation and protect minority interests. But it means that any sizeable minority can throw a wrench into it. Legislation simply does not get passed. It would almost certainly be possible to construct a rewrite of the robocall rules that would be broadly agreed on and suit the Supreme Court's concerns. But it will also be in somebody's interest to see that not happen, and they'll have allies who want to leverage that interest: "I'll vote to suppress this law if you'll vote for my thing." I'm not calling on the Supreme Court to legislate from the bench, but rather to point out that the widely-praised system of checks and balances is far from perfect. It gets in its own way a lot, and it's very easy for everybody to point fingers at everybody else and claim it's their fault. It practically begs people to do that. Increased partisanship has certainly made that worse. And I'm not so much interested in pointing fingers here, either, but rather to note that it's the system of checks and balances that encourages that partisanship. It sets such a high bar on passing laws that only dedicated allies are capable of passing anything -- and to ensure that dedicated allies can stop anything. With a huge thumb on the scale towards the latter, so that no amount of "surely we can all agree to be agreeable..." can compensate.
- linuxftw 6y ago
  IMO, still too easily to legislate. I would require at least 3/4ths of both houses for all bills and give governors a 51% veto power. The US constitution was supposed to limit the power of the federal government. It has failed to do that in a meaningful way.
  - zacharycohn 6y ago
    The Articles of Confederation were designed to give limited power to a weak federal government and more power to stronger state governments. It was a disaster, then we tried again - the other way - with the Constitution. The Constitution puts limits on the power of government, the goal isn't a limited federal government.
    - willcipriano 6y ago
      Limited government was certainly Jeffersons aim: "The course of history shows that as a government grows, liberty decreases." Washington seems to agree, for example this quote from his farewell address: "It is important that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position."
      - jfengel 6y ago
        We should have gone to Jefferson and Washington's farms and taken a vote on what kinds of changes were necessary.
        willcipriano 6y ago
        If you think about that a bit more deeply, if Washington and Jefferson had been fans of a strong federal government slavery would've been a federal policy as opposed to a per state policy and likely would've been much more difficult to end as the northern states would've contained slave owners as opposed to only the southern states.
    - AnthonyMouse 6y ago
      > The Articles of Confederation were designed to give limited power to a weak federal government and more power to stronger state governments. It was a disaster, then we tried again - the other way - with the Constitution. The country thrived under the Constitution with a narrow interpretation of the commerce clause and a federal government that spent 3% of GDP instead of 20% for more than a hundred years. The expansive "reinterpretation" of federal power in the 20th century was the source of all the existing trouble.
- aksss 6y ago
  > legislation is practically impossible To add some color, federal legislation affecting fifty states equally is hard to pass without broad consensus. I agree that was designed in as a feature, not a bug. It means when the nation doesn’t feel in the mood to compromise, the status quo holds more weight. The federal legislature has certainly had no issue passing laws in its time and certainly will continue to do. I think we’re still wrestling with the impacts of social media on politics though, trying to incorporate that dynamic for good or ill.
  - jfengel 6y ago
    Unfortunately, the nation hasn't been in a mood to compromise since before social media. When was the last time that a President wasn't actively hated by the opposition? Not merely disliked or opposed, but actively considered incompetent and detrimental to the nation? The last time people talked about a "honeymoon period"? The last one I can remember is George HW Bush -- unless you want to count the brief honeymoon his son was given in the immediate aftermath of 9/11. Not that people liked George HW Bush (he didn't win reelection), but he was opposed rather than actively harassed. Arguably Bill Clinton got such a "honeymoon" period, but after that he was opposed with a literal vengeance. Presidents are a very particular lens to look at this with, but I think it's illuminating. I believe it reflects the nation not being interested in compromise. (There are other interpretations, but I think it's indicative.) If there was a time that the federal legislature had no issue passing laws, it's at least 30 years ago. That's before a lot of HN users were even born. And it shows no time of abating any time soon. Indeed, it only seems to be growing.
    - aksss 6y ago
      Yeah, never in my lifetime. I remember a college prof in the late nineties telling me she though Reagan was the worst president in the country’s history. I remember thinking at the time, “jeez, that’s a bit much for a variety of reasons”. At the time though there was as much vitriol against Clinton. I guess a difference may have been that legislators weren’t as accountable in the same way as they are today, and had more room to negotiate and engage in generalized reciprocity. Today, politics has a very distasteful air of religious zealotry, where “sinning” against the orthodoxy of the true believers on both sides is shamed, purity idolized. So everyone is fighting tooth and nail for the barest majorities and procedural tricks to let them manifest their will with nothing more than that. On one hand I find the accountability good, but on the other I wish as a nation we cared less about “national conversations” and thought/acted more locally. National solutions are rarely a well-suited or efficient fit, so in a way, the harder it is for party zealots of either side to enforce their will across fifty different states, the better, IMO. The threat that either side will be successful is what keeps everyone overly-anxious and hyper-engaged/enraged. In a way, having confidence in the inefficiency is good medicine.
- clairity 6y ago
  > "...but rather to note that it's the system of checks and balances that encourages that partisanship." i'd argue 'encourage' too strongly leans into intent here, and that 'permit' seems closer to what's going on. any multi-party, adversarial system is prone to partisanship. 'checks and balances' may be more explicitly adversarial, but making that explicit isn't necessary for people to line up against each other in a political context and create gridlock. plus, 4 factions aren't really better than 2 at creating gridlock (because they often devolve into 2 opposing factions anyway).
  - jfengel 6y ago
    Absolutely. I just have a slightly hard time believing the Supreme Court when it throws up its tidy hands and says, "Well, this is a problem for the legislature", knowing full well that the legislature won't. Especially what it's done along partisan lines, though it isn't the case with this one. The Supreme Court is dominated by fans of the status quo, who then set the rules to further encourage the status quo. It's very hard not to read it as "Everything is fine with me, and if it's not fine with you, go get the House and the Senate and the President to agree with you (snicker). Then come back and I'll have a look at it."
- rufus_foreman 6y ago
  >> the widely-praised system of checks and balances is far from perfect Close to perfect is a pretty high bar. When a system of checks and balances lasts a quarter of a millennium, it got more right than it did wrong. >> Legislation simply does not get passed The Justice Department once tried to figure out how many federal crimes there were, they gave up and could only estimate. That was 35 years ago, they estimated something like 3000 crimes that were defined, it is estimated to be 4500 now. There are tens of thousands of pages of federal legislation. There are thousands of pages in the federal tax code alone. Legislation obviously does get passed.

The practical consequences sorta suck, but the concept of a narrow reading of the law, leaning on the legislature to actually, you know, legislate — we could use more of that.

jfengel 6y ago

I'd have more sympathy for that if the legislature hadn't been designed to not legislate. Passing legislation requires the approval of three bodies: the Senate, the House, and the President. That's before you add in the filibuster in the Senate, which sets a very high bar on its approval. For the Supreme Court to add a fourth check-and-balance means that legislation is practically impossible. There is an enormous pressure to not do anything. That feature is well-intended, to ensure the legislation is passed with due deliberation and protect minority interests. But it means that any sizeable minority can throw a wrench into it. Legislation simply does not get passed. It would almost certainly be possible to construct a rewrite of the robocall rules that would be broadly agreed on and suit the Supreme Court's concerns. But it will also be in somebody's interest to see that not happen, and they'll have allies who want to leverage that interest: "I'll vote to suppress this law if you'll vote for my thing." I'm not calling on the Supreme Court to legislate from the bench, but rather to point out that the widely-praised system of checks and balances is far from perfect. It gets in its own way a lot, and it's very easy for everybody to point fingers at everybody else and claim it's their fault. It practically begs people to do that. Increased partisanship has certainly made that worse. And I'm not so much interested in pointing fingers here, either, but rather to note that it's the system of checks and balances that encourages that partisanship. It sets such a high bar on passing laws that only dedicated allies are capable of passing anything -- and to ensure that dedicated allies can stop anything. With a huge thumb on the scale towards the latter, so that no amount of "surely we can all agree to be agreeable..." can compensate.

linuxftw 6y ago
IMO, still too easily to legislate. I would require at least 3/4ths of both houses for all bills and give governors a 51% veto power. The US constitution was supposed to limit the power of the federal government. It has failed to do that in a meaningful way.
- zacharycohn 6y ago
  The Articles of Confederation were designed to give limited power to a weak federal government and more power to stronger state governments. It was a disaster, then we tried again - the other way - with the Constitution. The Constitution puts limits on the power of government, the goal isn't a limited federal government.
  - willcipriano 6y ago
    Limited government was certainly Jeffersons aim: "The course of history shows that as a government grows, liberty decreases." Washington seems to agree, for example this quote from his farewell address: "It is important that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position."
    - jfengel 6y ago
      We should have gone to Jefferson and Washington's farms and taken a vote on what kinds of changes were necessary.
      - willcipriano 6y ago
        If you think about that a bit more deeply, if Washington and Jefferson had been fans of a strong federal government slavery would've been a federal policy as opposed to a per state policy and likely would've been much more difficult to end as the northern states would've contained slave owners as opposed to only the southern states.
  - AnthonyMouse 6y ago
    > The Articles of Confederation were designed to give limited power to a weak federal government and more power to stronger state governments. It was a disaster, then we tried again - the other way - with the Constitution. The country thrived under the Constitution with a narrow interpretation of the commerce clause and a federal government that spent 3% of GDP instead of 20% for more than a hundred years. The expansive "reinterpretation" of federal power in the 20th century was the source of all the existing trouble.
aksss 6y ago
> legislation is practically impossible To add some color, federal legislation affecting fifty states equally is hard to pass without broad consensus. I agree that was designed in as a feature, not a bug. It means when the nation doesn’t feel in the mood to compromise, the status quo holds more weight. The federal legislature has certainly had no issue passing laws in its time and certainly will continue to do. I think we’re still wrestling with the impacts of social media on politics though, trying to incorporate that dynamic for good or ill.
- jfengel 6y ago
  Unfortunately, the nation hasn't been in a mood to compromise since before social media. When was the last time that a President wasn't actively hated by the opposition? Not merely disliked or opposed, but actively considered incompetent and detrimental to the nation? The last time people talked about a "honeymoon period"? The last one I can remember is George HW Bush -- unless you want to count the brief honeymoon his son was given in the immediate aftermath of 9/11. Not that people liked George HW Bush (he didn't win reelection), but he was opposed rather than actively harassed. Arguably Bill Clinton got such a "honeymoon" period, but after that he was opposed with a literal vengeance. Presidents are a very particular lens to look at this with, but I think it's illuminating. I believe it reflects the nation not being interested in compromise. (There are other interpretations, but I think it's indicative.) If there was a time that the federal legislature had no issue passing laws, it's at least 30 years ago. That's before a lot of HN users were even born. And it shows no time of abating any time soon. Indeed, it only seems to be growing.
  - aksss 6y ago
    Yeah, never in my lifetime. I remember a college prof in the late nineties telling me she though Reagan was the worst president in the country’s history. I remember thinking at the time, “jeez, that’s a bit much for a variety of reasons”. At the time though there was as much vitriol against Clinton. I guess a difference may have been that legislators weren’t as accountable in the same way as they are today, and had more room to negotiate and engage in generalized reciprocity. Today, politics has a very distasteful air of religious zealotry, where “sinning” against the orthodoxy of the true believers on both sides is shamed, purity idolized. So everyone is fighting tooth and nail for the barest majorities and procedural tricks to let them manifest their will with nothing more than that. On one hand I find the accountability good, but on the other I wish as a nation we cared less about “national conversations” and thought/acted more locally. National solutions are rarely a well-suited or efficient fit, so in a way, the harder it is for party zealots of either side to enforce their will across fifty different states, the better, IMO. The threat that either side will be successful is what keeps everyone overly-anxious and hyper-engaged/enraged. In a way, having confidence in the inefficiency is good medicine.
clairity 6y ago
> "...but rather to note that it's the system of checks and balances that encourages that partisanship." i'd argue 'encourage' too strongly leans into intent here, and that 'permit' seems closer to what's going on. any multi-party, adversarial system is prone to partisanship. 'checks and balances' may be more explicitly adversarial, but making that explicit isn't necessary for people to line up against each other in a political context and create gridlock. plus, 4 factions aren't really better than 2 at creating gridlock (because they often devolve into 2 opposing factions anyway).
- jfengel 6y ago
  Absolutely. I just have a slightly hard time believing the Supreme Court when it throws up its tidy hands and says, "Well, this is a problem for the legislature", knowing full well that the legislature won't. Especially what it's done along partisan lines, though it isn't the case with this one. The Supreme Court is dominated by fans of the status quo, who then set the rules to further encourage the status quo. It's very hard not to read it as "Everything is fine with me, and if it's not fine with you, go get the House and the Senate and the President to agree with you (snicker). Then come back and I'll have a look at it."
rufus_foreman 6y ago
>> the widely-praised system of checks and balances is far from perfect Close to perfect is a pretty high bar. When a system of checks and balances lasts a quarter of a millennium, it got more right than it did wrong. >> Legislation simply does not get passed The Justice Department once tried to figure out how many federal crimes there were, they gave up and could only estimate. That was 35 years ago, they estimated something like 3000 crimes that were defined, it is estimated to be 4500 now. There are tens of thousands of pages of federal legislation. There are thousands of pages in the federal tax code alone. Legislation obviously does get passed.