4 ms·

So in other words, you are defining "constitutionality" to mean whatever SCOTUS says it means. So if they said, "First Amendment doesn't count any more, sorry

So in other words, you are defining "constitutionality" to mean whatever SCOTUS says it means. So if they said, "First Amendment doesn't count any more, sorry for the confusion," then I guess there is no more Constitution. Your approach sounds like gaslighting at a grand scale. When we ask the population to set aside its own reason in the face of obviously incorrect decisions, you open the door to the end of democracy.

skissane 4y ago
What’s obviously incorrect to one segment of the population is obviously correct to another. When you say “1st Amendment”, you are talking about something invented by SCOTUS. The original 1st Amendment was a lot narrower (it only applied to the federal government not the states.) It was only in the 1920s that SCOTUS decided it should apply to the states as well, even though there is no evidence that outcome was intended at the time of its adoption (or the adoption of the 14th). It isn’t “gaslighting”, it is legal realism, and paying attention to historical details.
- hackyhacky 4y ago
  > What’s obviously incorrect to one segment of the population is obviously correct to another. That's exactly why I call it gaslighting. It brings to mind Sarah Palin's "alternative facts". Despite your miscellaneous feelings, objective reality exists, justice exists, and, ideally, the courts would be bound to follow both.
  - skissane 4y ago
    What on the earth are you talking about? The overturning of Roe v Wade? I live in a country with no constitutional right to an abortion (Australia) - and we have abortion available nationwide, even funded by the federal government. Whatever the rights or wrongs of allowing or prohibiting abortion, is a separate issue from whether a constitutional right to it ought to be interpreted to exist in a constitution which never explicitly provides for one.
  - capitalsigma 4y ago
    "Justice" is not the same thing as "constitutionality." The latter is a legal construct.
kcplate 4y ago
> So if they said, "First Amendment doesn't count any more, sorry for the confusion," then I guess there is no more Constitution. Not how that works, someone else have to make that claim, make the argument and convince the majority. And…SCOTUS would have to evaluate the argument based on the first amendment itself and whether or not it allowed itself to be eliminated.
- skissane 4y ago
  There’s a plausible argument that Gitlow v New York (1925), which extended the 1st Amendment to apply to the states, was wrongly decided. I can’t see how any consistent originalist could disagree. The framers of the 1st Amendment saw protecting free speech at the state level as a job for state constitutions not the federal constitution. The framers of the 14th Amendment never intended it to change that in the general case.

skissane 4y ago

What’s obviously incorrect to one segment of the population is obviously correct to another. When you say “1st Amendment”, you are talking about something invented by SCOTUS. The original 1st Amendment was a lot narrower (it only applied to the federal government not the states.) It was only in the 1920s that SCOTUS decided it should apply to the states as well, even though there is no evidence that outcome was intended at the time of its adoption (or the adoption of the 14th). It isn’t “gaslighting”, it is legal realism, and paying attention to historical details.

hackyhacky 4y ago
> What’s obviously incorrect to one segment of the population is obviously correct to another. That's exactly why I call it gaslighting. It brings to mind Sarah Palin's "alternative facts". Despite your miscellaneous feelings, objective reality exists, justice exists, and, ideally, the courts would be bound to follow both.
- skissane 4y ago
  What on the earth are you talking about? The overturning of Roe v Wade? I live in a country with no constitutional right to an abortion (Australia) - and we have abortion available nationwide, even funded by the federal government. Whatever the rights or wrongs of allowing or prohibiting abortion, is a separate issue from whether a constitutional right to it ought to be interpreted to exist in a constitution which never explicitly provides for one.
- capitalsigma 4y ago
  "Justice" is not the same thing as "constitutionality." The latter is a legal construct.

kcplate 4y ago

> So if they said, "First Amendment doesn't count any more, sorry for the confusion," then I guess there is no more Constitution. Not how that works, someone else have to make that claim, make the argument and convince the majority. And…SCOTUS would have to evaluate the argument based on the first amendment itself and whether or not it allowed itself to be eliminated.

skissane 4y ago
There’s a plausible argument that Gitlow v New York (1925), which extended the 1st Amendment to apply to the states, was wrongly decided. I can’t see how any consistent originalist could disagree. The framers of the 1st Amendment saw protecting free speech at the state level as a job for state constitutions not the federal constitution. The framers of the 14th Amendment never intended it to change that in the general case.