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>"Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she shou

>"Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted." I feel like the author is looking at using amendments as a way to implement legislation that is permanent. Our Federal constitution is fairly concise, whereas some State constitutions are so easy and readily amendable that legislation gets codified in almost every session [1]. The challenge with doing this is that the constitution itself converges into just another body of law. [1] https://en.wikipedia.org/wiki/Constitution_of_Alabama https://en.wikipedia.org/wiki/Constitution_of_Alabama Edit: Instead of "permanent", "decisively" would be more appropriate. A constitution that can easily be amended can just as easily be un-amended. A response to this comment said "way to settle national controversies" which seems far more fitting than what I originally wrote.

tptacek 4y ago
It's another way in which the article doesn't cohere, because it seems clear that Lepore sees amendments as in part a way to settle national controversies (like birthright citizenship or the right to bear arms). But an amendable Constitution doesn't settle anything, as you point out. What it really does is sap political power from the Supreme Court, which is a reasonable goal for someone like Lepore to have right now.
- lupire 4y ago
  Congress passing laws saps power from the Supreme Court, and is easier than Amending the Constitution.
  - kritiko 4y ago
    The Supreme Court can then strike down those laws via judicial review, a power not enumerated in the constitution.
    - epicureanideal 4y ago
      > a power not enumerated in the constitution. But at least with two hundred years of general acceptance, so clearly there was something to it.
      - vkou 4y ago
        So, two hundred years of general acceptance (well, aside from that civil war thing where vastly differing fundamental interpretations of how the country can be governed were tested by the tried and true debating tactic of 'how many boys can we send over the trenches') is iron-clad. But say, 80 years (FDR's expansion of executive power, which reactionaries in the courts are currently dismantling) is not? Hardly anyone alive remembers it in any other way by this point, and everyone involved in setting that state of affairs has been dead and buried for a generation. And yet... It's also strange how people seem to be fine to cherrypick a superset of (constitution + a bunch of other two-centuries old political babble), but exclude mountains of conflicting (two centuries-old political babble). It's almost as if the desired outcome is pre-determined, and we're just looking for fig leaves to justify it.
    - tptacek 4y ago
      The idea of judicial review as unconstitutional is a fringe view not worth taking seriously. It was established by the framers during the time of the framers. It was a norm in law in the systems that preceded the Constitution, both in the colonies and in the post-revolutionary governments. It's mentioned in the Federalist Papers. When you're arguing with Publius, you're in crank territory.
      - kritiko 4y ago
        I'm not arguing with Publius, I'm saying it would be preferable if it were explicitly stated -- same as e.g. a right to privacy or a less ambiguous 2nd amendment. As for what the framers thought, Wikipedia has some choice quotes, including from Thomas Jefferson: https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States#Criticism_of_judicial_review https://en.wikipedia.org/wiki/Judicial_review_in_the_United_...
jfengel 4y ago
Our Federal constitution is fairly concise Concise to the point of vacuous. It says practically nothing. It describes only the barest outlines of government, and effectively all of the actual implementation has been a matter of legislation, judicial decisions, and tradition. Individual words are scrutinized as if they will somehow be unambiguous if we stare at them long enough, or bring in enough cherry-picked outside context. The section on the courts is especially hilariously short. It basically says "We should have one". Everything after that -- included the vaunted ability of the Supreme Court to "interpret the constitution", is a matter of them deciding that it was something they were going to do and everybody else going along with it.
- tptacek 4y ago
  I don't think this is true. For instance, compare US defamation law to UK defamation law. The distinctions, which are large, are entirely because of the structure of our constitution. Or look at the rules of evidence in Europe, where you don't necessarily have a right to avoid self-incrimination, or to exclude evidence gained unlawfully.
  - hammock 4y ago
    All distinctions which were created by amendments
    - Rebelgecko 4y ago
      IMO we should probably differentiate between the BOR and amendments which came later
      - dragonwriter 4y ago
        > IMO we should probably differentiate between the BOR and amendments which came later Of the 27 amendments that have been ratified, the most recent was one of the twelve submitted as the Bill of Rights, so there are literally none that have come later. Sixteen have come in between (one from the BOR was never passed.) Also, the most relevant amendment to the issues upthread, for most purposes in US law (since things like defamation law and most of the cases where the evidence differences matter are state, not federal) is the 14th, which is not part of the BOR.
dogmatism 4y ago
I lived in Alabama for quite some time. For anyone not reading the wikipedia article (and tbh, I haven't either, but am quite familiar with it's constitution) it was expressly written to consolidate power in the "planter" rich, white, ruling class and take power from both Blacks and lower SES whites, with a bit of a sop to the more independent farmers of the North Alabama hills (remember this was a time of far from universal suffrage) The result was that most cities and counties don't have a lot of direct control, and any little thing has go through the amendment process: e.g. this year question 8 on the ballot refers to Shelby county's regulation of sewer rates It's a shitshow through and through
jdmichal 4y ago
I know Florida has some "law-like" amendments. At least a couple recent ones, specifically the legalization of medical marijuana and minimum wage increases, came about because it's a way for the populace to directly vote on and implement laws that state representatives are refusing to pass or even discuss.

tptacek 4y ago

It's another way in which the article doesn't cohere, because it seems clear that Lepore sees amendments as in part a way to settle national controversies (like birthright citizenship or the right to bear arms). But an amendable Constitution doesn't settle anything, as you point out. What it really does is sap political power from the Supreme Court, which is a reasonable goal for someone like Lepore to have right now.

lupire 4y ago
Congress passing laws saps power from the Supreme Court, and is easier than Amending the Constitution.
- kritiko 4y ago
  The Supreme Court can then strike down those laws via judicial review, a power not enumerated in the constitution.
  - epicureanideal 4y ago
    > a power not enumerated in the constitution. But at least with two hundred years of general acceptance, so clearly there was something to it.
    - vkou 4y ago
      So, two hundred years of general acceptance (well, aside from that civil war thing where vastly differing fundamental interpretations of how the country can be governed were tested by the tried and true debating tactic of 'how many boys can we send over the trenches') is iron-clad. But say, 80 years (FDR's expansion of executive power, which reactionaries in the courts are currently dismantling) is not? Hardly anyone alive remembers it in any other way by this point, and everyone involved in setting that state of affairs has been dead and buried for a generation. And yet... It's also strange how people seem to be fine to cherrypick a superset of (constitution + a bunch of other two-centuries old political babble), but exclude mountains of conflicting (two centuries-old political babble). It's almost as if the desired outcome is pre-determined, and we're just looking for fig leaves to justify it.
  - tptacek 4y ago
    The idea of judicial review as unconstitutional is a fringe view not worth taking seriously. It was established by the framers during the time of the framers. It was a norm in law in the systems that preceded the Constitution, both in the colonies and in the post-revolutionary governments. It's mentioned in the Federalist Papers. When you're arguing with Publius, you're in crank territory.
    - kritiko 4y ago
      I'm not arguing with Publius, I'm saying it would be preferable if it were explicitly stated -- same as e.g. a right to privacy or a less ambiguous 2nd amendment. As for what the framers thought, Wikipedia has some choice quotes, including from Thomas Jefferson: https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States#Criticism_of_judicial_review https://en.wikipedia.org/wiki/Judicial_review_in_the_United_...

jfengel 4y ago

Our Federal constitution is fairly concise Concise to the point of vacuous. It says practically nothing. It describes only the barest outlines of government, and effectively all of the actual implementation has been a matter of legislation, judicial decisions, and tradition. Individual words are scrutinized as if they will somehow be unambiguous if we stare at them long enough, or bring in enough cherry-picked outside context. The section on the courts is especially hilariously short. It basically says "We should have one". Everything after that -- included the vaunted ability of the Supreme Court to "interpret the constitution", is a matter of them deciding that it was something they were going to do and everybody else going along with it.

tptacek 4y ago
I don't think this is true. For instance, compare US defamation law to UK defamation law. The distinctions, which are large, are entirely because of the structure of our constitution. Or look at the rules of evidence in Europe, where you don't necessarily have a right to avoid self-incrimination, or to exclude evidence gained unlawfully.
- hammock 4y ago
  All distinctions which were created by amendments
  - Rebelgecko 4y ago
    IMO we should probably differentiate between the BOR and amendments which came later
    - dragonwriter 4y ago
      > IMO we should probably differentiate between the BOR and amendments which came later Of the 27 amendments that have been ratified, the most recent was one of the twelve submitted as the Bill of Rights, so there are literally none that have come later. Sixteen have come in between (one from the BOR was never passed.) Also, the most relevant amendment to the issues upthread, for most purposes in US law (since things like defamation law and most of the cases where the evidence differences matter are state, not federal) is the 14th, which is not part of the BOR.

dogmatism 4y ago

I lived in Alabama for quite some time. For anyone not reading the wikipedia article (and tbh, I haven't either, but am quite familiar with it's constitution) it was expressly written to consolidate power in the "planter" rich, white, ruling class and take power from both Blacks and lower SES whites, with a bit of a sop to the more independent farmers of the North Alabama hills (remember this was a time of far from universal suffrage) The result was that most cities and counties don't have a lot of direct control, and any little thing has go through the amendment process: e.g. this year question 8 on the ballot refers to Shelby county's regulation of sewer rates It's a shitshow through and through

jdmichal 4y ago

I know Florida has some "law-like" amendments. At least a couple recent ones, specifically the legalization of medical marijuana and minimum wage increases, came about because it's a way for the populace to directly vote on and implement laws that state representatives are refusing to pass or even discuss.