11 ms·

If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federa

If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federal government narrowly) so the supreme court essentially has no choice but to make stuff up. Obviously once they start doing that there's no real way to control what they are able to modify, but the only real way to fix it would be to completely scrap the current constitution and start from scratch (and be much more explicit about everything including rights and constitutional review). However,the constitution is now seen as something like infallible scripture in the US, plus it's impossible to get everyone to agree on anything, so that would be highly unlikely in the near future even though other to countries have been able to do it.

ori_b 5y ago
> so the supreme court essentially has no choice but to make stuff up. Or the constitution can be amended.
- voidfunc 5y ago
  This was Scalia's position basically.. he always held that there is a process for changing the Constitution.
  - eigen 5y ago
    > he always held that there is a process for changing the Constitution. during the time Scalia was on the US Supreme Court (1986-2016), there was 1 amendment to the US constitution (27th) that was took 202 years for approvals. since I don't think he could be considered naive, it is almost certain he was disingenuous.
    - jack_h 5y ago
      Why would he 'almost certain[ly]' be disingenuous? He stated in at least one interview that he believed the amendment process was too onerous in its requirements.
- ceejayoz 5y ago
  Sure, but I don't blame the Court at times for going "sure, we could reject this, and cause a couple decades worth of clear, widespread harm, which might generate enough political will to push one through" and noping out.
fallingknife 5y ago
Letting the states make their own decisions on issues not addressed by the constitution is a perfectly viable solution. Not sure why that would be particularly difficult.
- sigzero 5y ago
  That is what was supposed to happen. The Federal level has way too much power today.
  - voidfunc 5y ago
    Yes, unfortunately "states rights" has become a rallying cry for racism and hatred, but the original framing of this country is that the state's are basically supposed to be much stronger than the Federal government. I don't really know whether we can unwind the federal governments grasp on things without basically destabilizing the whole thing though at this point (and admittedly, I'm not sure the majority would want to).
    - shadowgovt 5y ago
      It's worth noting that the original plan was for even less Federal power, and that one fell apart almost immediately. Power has been moving in a central direction ever since.
      - jessaustin 5y ago
        Not so much "fell apart" as "intentionally overthrown by capitalists when they didn't agree with policies determined through democracy". Madison and his co-conspirators didn't approve of the deliberate currency depreciation and other measures voted in by farmers who fought, unpaid, for years in a war that benefited rich elites and came home to find their farms repossessed by debtors and tax collectors. So long as the various states operated as competing democracies, they were subject to the wishes of their citizens. The constitution, written in secret by a cabal of rich white men, put an end to all of that, as it was intended to do.
bobsil1 5y ago
The slaver bits (including electoral college, disproportionate Senate) need a total rewrite. Amending against bad faith pol exploits should be as frequent as Patch Tuesday. While we’re at it, promote the non-slaver founders symbolically and strike the slavers from the currency. Rebrand as Free States of America.
- rayiner 5y ago
  The Senate was there for the small states, which were evenly split between free states and slave states (whether or not you count enslaved people). Big states likewise includes free states (MA) and slave states (VA). Don’t mix up the parts of the constitution compromising with slavery with the parts liberals just don’t like for unrelated reasons.
  - bobsil1 5y ago
    GOP created a bunch of low-population states (North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming) in 1889-90 to stack the Senate; and granting 2 senators per artificial perimeter is the same one-person-one-vote problem. National popular vote is the only democratically legitimate method.
    - rayiner 5y ago
      California had only 95,000 people when it became a state. At the time of statehood,South Dakota had 350,000 people while North Dakota had 190,000 people. There were political and economic differences (and a rivalry) between the two, due to among other things the structure of the rail networks, from the beginning: https://time.com/4377423/dakota-north-south-history-two https://time.com/4377423/dakota-north-south-history-two. Both were growing very rapidly, and the southern part of the Dakota territory had held a separate constitutional convention. Harrison reportedly shuffled the bills of statehood before signing so nobody knew which became a state first—a sign of the rivalry. Idaho had 90,000 people, and Montana had 142,000 (and was expected to vote Democrat). Montana, Washington, Wyoming, and Idaho had been separate territories for 35-50 years. This was more than many of the more eastern states had at the time of statehood. (E.g. Tennessee became a state at 75,000 people.) We think of these states as fungible “flyover country” today, but when they were created they had very distinct identities. (Wyoming for example was a highly progressive state that allowed women to vote 50 years before the 19th amendment.) The economies were tied closely to the land (mineral deposits here or there) and the shape of the country’s rail networks. The perfectly square boundaries are somewhat artificial, but the states themselves represented quite distinct population centers and were quite populous for the time.
rayiner 5y ago
> If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federal government narrowly) so the supreme court essentially has no choice but to make stuff up. One, that’s not quite true. Sometimes the Constitution uses broad language. For example, the Commerce Clause is worded expansively. It’s probably been pushed a bit beyond the text, but the bigger impact is from vastly more activity in the country involving “interstate commerce.” Regardless, that’s well within the scope of interpretation and judgment. By contrast, there are a number of things the Supreme Court has simply made up. Conjuring a “right to privacy” from “penumbras” of the other amendments is an example. The “reasonable expectation of privacy” formulation of the 4th amendment. The “wall of separation” of church and state. The country wouldn’t fall into the ocean without these things. The administrative state is probably the most unconstitutional thing that’s simultaneously necessary. Specifically, regulatory agencies in the executive branch that combine legislative and judicial functions. (E.g. having the ability to promulgate rules and then adjudicate violations.) But one can imagine workarounds. E.g. executive agencies propose rules which Congress enacts. (Proposing laws is actually a function of the executive branch.)
- gassit 5y ago
  I would be interested in reading some detail of the "wall of separation" of church and state being something that the Supreme Court made up. It seems quite self evident from the text of the First Amendment. And the quote seems to come directly from Jefferson?
  - rayiner 5y ago
    The phrase “establishment of religion” has a specific meaning: official state churches that existed at the time: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264 https://constitutioncenter.org/interactive-constitution/inte... Jefferson was a Francophile that had a radically different view of the first amendment than the other founding fathers. The constitution meant to create a society of religious pluralism, not French style secularism. See: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1280&context=jcl https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...
iammisc 5y ago
The constitution grants pretty much unlimited power to the states, which are the primary sovereign ntity ruling over their territories.
jfrunyon 5y ago
> If interpreted strictly, the constitution is really not suitable for operating a modern government Let's take that as true, 'cause I agree > so the supreme court essentially has no choice but to make stuff up. No. The supreme court should have continued to observe the constitution and told Congress that they needed to propose some amendments. If there was a need for them, they'd happen, just like they have in the past.
- R0b0t1 5y ago
  I agree. We are where we are because there is a trend of appointing federal judges that grant the federal government more power. A lot of rulings at the federal level are morally bankrupt, easiest to see in the ones regarding the interstate commerce clause. An inability for states to rule themselves is, I think, the driving force behind identity politics today.

ori_b 5y ago

> so the supreme court essentially has no choice but to make stuff up. Or the constitution can be amended.

voidfunc 5y ago
This was Scalia's position basically.. he always held that there is a process for changing the Constitution.
- eigen 5y ago
  > he always held that there is a process for changing the Constitution. during the time Scalia was on the US Supreme Court (1986-2016), there was 1 amendment to the US constitution (27th) that was took 202 years for approvals. since I don't think he could be considered naive, it is almost certain he was disingenuous.
  - jack_h 5y ago
    Why would he 'almost certain[ly]' be disingenuous? He stated in at least one interview that he believed the amendment process was too onerous in its requirements.
ceejayoz 5y ago
Sure, but I don't blame the Court at times for going "sure, we could reject this, and cause a couple decades worth of clear, widespread harm, which might generate enough political will to push one through" and noping out.

fallingknife 5y ago

Letting the states make their own decisions on issues not addressed by the constitution is a perfectly viable solution. Not sure why that would be particularly difficult.

sigzero 5y ago
That is what was supposed to happen. The Federal level has way too much power today.
- voidfunc 5y ago
  Yes, unfortunately "states rights" has become a rallying cry for racism and hatred, but the original framing of this country is that the state's are basically supposed to be much stronger than the Federal government. I don't really know whether we can unwind the federal governments grasp on things without basically destabilizing the whole thing though at this point (and admittedly, I'm not sure the majority would want to).
  - shadowgovt 5y ago
    It's worth noting that the original plan was for even less Federal power, and that one fell apart almost immediately. Power has been moving in a central direction ever since.
    - jessaustin 5y ago
      Not so much "fell apart" as "intentionally overthrown by capitalists when they didn't agree with policies determined through democracy". Madison and his co-conspirators didn't approve of the deliberate currency depreciation and other measures voted in by farmers who fought, unpaid, for years in a war that benefited rich elites and came home to find their farms repossessed by debtors and tax collectors. So long as the various states operated as competing democracies, they were subject to the wishes of their citizens. The constitution, written in secret by a cabal of rich white men, put an end to all of that, as it was intended to do.

bobsil1 5y ago

The slaver bits (including electoral college, disproportionate Senate) need a total rewrite. Amending against bad faith pol exploits should be as frequent as Patch Tuesday. While we’re at it, promote the non-slaver founders symbolically and strike the slavers from the currency. Rebrand as Free States of America.

rayiner 5y ago
The Senate was there for the small states, which were evenly split between free states and slave states (whether or not you count enslaved people). Big states likewise includes free states (MA) and slave states (VA). Don’t mix up the parts of the constitution compromising with slavery with the parts liberals just don’t like for unrelated reasons.
- bobsil1 5y ago
  GOP created a bunch of low-population states (North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming) in 1889-90 to stack the Senate; and granting 2 senators per artificial perimeter is the same one-person-one-vote problem. National popular vote is the only democratically legitimate method.
  - rayiner 5y ago
    California had only 95,000 people when it became a state. At the time of statehood,South Dakota had 350,000 people while North Dakota had 190,000 people. There were political and economic differences (and a rivalry) between the two, due to among other things the structure of the rail networks, from the beginning: https://time.com/4377423/dakota-north-south-history-two https://time.com/4377423/dakota-north-south-history-two. Both were growing very rapidly, and the southern part of the Dakota territory had held a separate constitutional convention. Harrison reportedly shuffled the bills of statehood before signing so nobody knew which became a state first—a sign of the rivalry. Idaho had 90,000 people, and Montana had 142,000 (and was expected to vote Democrat). Montana, Washington, Wyoming, and Idaho had been separate territories for 35-50 years. This was more than many of the more eastern states had at the time of statehood. (E.g. Tennessee became a state at 75,000 people.) We think of these states as fungible “flyover country” today, but when they were created they had very distinct identities. (Wyoming for example was a highly progressive state that allowed women to vote 50 years before the 19th amendment.) The economies were tied closely to the land (mineral deposits here or there) and the shape of the country’s rail networks. The perfectly square boundaries are somewhat artificial, but the states themselves represented quite distinct population centers and were quite populous for the time.

rayiner 5y ago

> If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federal government narrowly) so the supreme court essentially has no choice but to make stuff up. One, that’s not quite true. Sometimes the Constitution uses broad language. For example, the Commerce Clause is worded expansively. It’s probably been pushed a bit beyond the text, but the bigger impact is from vastly more activity in the country involving “interstate commerce.” Regardless, that’s well within the scope of interpretation and judgment. By contrast, there are a number of things the Supreme Court has simply made up. Conjuring a “right to privacy” from “penumbras” of the other amendments is an example. The “reasonable expectation of privacy” formulation of the 4th amendment. The “wall of separation” of church and state. The country wouldn’t fall into the ocean without these things. The administrative state is probably the most unconstitutional thing that’s simultaneously necessary. Specifically, regulatory agencies in the executive branch that combine legislative and judicial functions. (E.g. having the ability to promulgate rules and then adjudicate violations.) But one can imagine workarounds. E.g. executive agencies propose rules which Congress enacts. (Proposing laws is actually a function of the executive branch.)

gassit 5y ago
I would be interested in reading some detail of the "wall of separation" of church and state being something that the Supreme Court made up. It seems quite self evident from the text of the First Amendment. And the quote seems to come directly from Jefferson?
- rayiner 5y ago
  The phrase “establishment of religion” has a specific meaning: official state churches that existed at the time: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264 https://constitutioncenter.org/interactive-constitution/inte... Jefferson was a Francophile that had a radically different view of the first amendment than the other founding fathers. The constitution meant to create a society of religious pluralism, not French style secularism. See: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1280&context=jcl https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...

iammisc 5y ago

The constitution grants pretty much unlimited power to the states, which are the primary sovereign ntity ruling over their territories.

jfrunyon 5y ago

> If interpreted strictly, the constitution is really not suitable for operating a modern government Let's take that as true, 'cause I agree > so the supreme court essentially has no choice but to make stuff up. No. The supreme court should have continued to observe the constitution and told Congress that they needed to propose some amendments. If there was a need for them, they'd happen, just like they have in the past.

R0b0t1 5y ago
I agree. We are where we are because there is a trend of appointing federal judges that grant the federal government more power. A lot of rulings at the federal level are morally bankrupt, easiest to see in the ones regarding the interstate commerce clause. An inability for states to rule themselves is, I think, the driving force behind identity politics today.