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This is why the Federalist Papers are some of the most important documents when understanding the intent of the Constitution and Bill of Rights – and simultaneo

by 23B1 3y ago

This is why the Federalist Papers are some of the most important documents when understanding the intent of the Constitution and Bill of Rights – and simultaneously the least read! I'm not saying that case law isn't also an important aspect of the 'law' and that the constitution shouldn't be amended – I'm not really a hardcore 'originalist' – I just mean that any time a SCOTUS ruling comes out, it's clear that in the public square discussion, nobody has read these very important contextual documents and it is maddening.

kmbfjr 3y ago
What a wordy way to admit to dismissing anyone’s argument to which you do not agree because “they have not read the…”.
- 23B1 3y ago
  I agree. Arguments from ignorance should be dismissed.
derefr 3y ago
There seems to be a function missing from government. All governments, AFAICT. Legislators change the law (including, rarely, the constitution) — effectively by applying a hierarchy of "countermanding orders" — to suit the changing interests of the public. Courts interpret the law, but only downstream of legislation. The executive can make regulation and executive orders, but only in agreement with the law. But at the founding of any given country, something else usually happens: certain rights and laws that are already recognized intuitively become enshrined into the country's constitution. Things are written down into law not as a representation of a shift in public sentiment, but as a recognition of existing sentiment, and the desirability to formalize that sentiment as law to protect it from encroachment by legislation. Usually, this is done in the form of "representative anarchy": the people who establish a country are the people everyone rallied behind to overthrow the previous country; and because of this, they have very good knowledge of what rights their constituents were demanding that the previous government wasn't giving them. There's no trivial way to map this "representative anarchy" process of self-evident-rights information-gathering into an equivalent process that would occur within an established continuous government. But that doesn't mean it's impossible. For example, there could be a government department charged with 1. doing a kind of embedded journalism to figure out what issues "the people" are beginning to care about, that the law's stance on has no clear basis, because those issues were irrelevant when the constitution was enshrined; and then 2. coming up with referrendum-like polls to gather data on said public sentiment; where if the polls indicate a need, then at that point 3. the data will lead to a mandate for a constitutional amendment enshrining the public's desires to be created and put into force, which stands until this has successfully occurred; where 4. it is then up to the legislature and the supreme court to work together to draft the amendment; but 5. the ability to ratify the amendment is not in the hands of the legislature or the courts, but instead, this department will assemble a federal grand jury with participants from all states, which has a veto over each draft, and a congressional-subpoena-like ability to summon and retain the services of arbitrary legal experts to interpret the draft. (In est, this is trying to get as close as possible to having the public write the amendment themselves, with the legislature+courts being forced to "do the hard work" but not having any power over the result.) But exactly how such a system would work isn't really my point; my point is that there is currently no such system, and that this is perhaps a problem. In fact, it is perhaps the problem — the problem that leads to governments founded with public support increasingly failing to address the interests of the people over time; and so, to governments being overthrown and new countries being founded.
- norir 3y ago
  I like this idea. A somewhat related idea I've had is that instead of giving the supreme court ultimate power to overrule and/or reinterpret existing legislation they instead would be given power to call a referendum. Each justice would have the ability to attach their own revised version of the law to the referendum and there would be a voting process to determine which version of the law to accept as canonical. This would prevent the kind of situation we have right now where the court is controlled by a minority group that is imposing its views with impunity. So long as there is but one voice on the court that represents the majority public interest, the public can win out (provided elections are free and fair of course). Right now, regardless of where you fall ideologically, it is clear that the structure of the court can be exploited to impose a vision of the country that does not reflect the wishes of most of its citizens. Even those who feel ideologically aligned with the supermajority court should be concerned with the tact they are taking. It's destabilizing and planting the seeds for the institution's demise.
  - notahacker 3y ago
    The problem with referenda that the function of the Supreme Court isn't writing new laws but settling individual cases according to existing law. The reason why this has wide reaching implications is because other courts are bound to follow its legal arguments as precedents with other cases (and because Supreme Court justices can sometimes rule that a particular law is inconsistent with the constitution, which they do at least in theory with the intent of preserving the constitution rather than creating a new law) The public is clearly not bound to even attempt to be consistent in its opinions from case to case, and if it's all over the place in its verdicts and might well be accepting or rejecting a verdicts for different reasons from the justices (maybe they think the legal arguments about privacy in the original Roe vs Wade were weak but also think women should have an inherent right to abortion that legislators haven't provided them with), it'ś difficult to see how lower courts can be bound by it. There's also a big question of who gets to vote, particularly for the cases where a state law is argued to be in violation of the federal constitution, which tends to be the more controversial ones...
    - 3y ago
rootusrootus 3y ago
For completeness, read the anti-federalist papers too. The collective opinion of Hamilton, Madison, and Jay is just one point of view.
- bryanrasmussen 3y ago
  I guess I don't get why the arguments against the Constitution of the time would be useful for "understanding the intent of the Constitution and Bill of Rights"?
  - turmacar 3y ago
    Because they are directly responsible for the Bill of Rights because they felt the Constitution didn't provide enough protection/clarity in some cases.
  - walterbell 3y ago
    For the same reason patch reviews can lead to code improvement.
  - 8note 3y ago
    The thing that passed is always a compromise between opposing views Only reading the federalist papers gives you a stilted opinion of what caused things to be the way they are
  - jean_lannes 3y ago
    The Bill of Rights came about largely as a product of anti-federalist agitation. Many prominent federalists felt that a Bill of Rights would be redundant; in federalist 84, Hamilton writes the following: > There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. [1] [1] https://avalon.law.yale.edu/18th_century/fed84.asp https://avalon.law.yale.edu/18th_century/fed84.asp
pierat 3y ago
The Federalist papers are the equivalent of a Medium blog post. And I will treat them as such. Edit: Evidently I've pissed off enough people who drink the red-white-blue kool-aid. -3 at the moment. These newspaper publishings were expressly for the solidification of power at the federal level, and the weakening of the states. And only look closer at what the "federal" powers were about, and it was all about "secur(ing) the existence of (their) people and a future for white children." (cite: 14 words) Hamilton/Madison/Jay and others knew if a strong federal law reigned supreme, his and other founders' slaves and their current wealth would be greatly solidified. And right he was. And all those slaves also gave 3/5'th a vote per human they enslaved. While many of you say it was for "selfless reasons", my only response is a great big belly laugh. So perhaps, I was wrong calling these an equivalent of a Medium blog post. No, instead they'd fit right in on the Daily Stormer or Stormfront (2 neonazi publications). Those are the types of "rights" these founders were fighting for: the rights to own another human as property.
- whatshisface 3y ago
  Maybe a blog post that Tim Berners Lee wrote during the standardization of HTTP.
  - rainsford 3y ago
    I agree with your general point that the Federalist Papers aren't quite the same as a random blog post. But to extend that analogy further, if I'm implementing HTTP, should I base my implementation on things only found in a blog post by Tim Berners Lee? Don't get me wrong, the Federalist Papers are important historical documents and provide unique insight into the minds of the authors. But they're not laws, and treating them as if they have actual legal significance seems wrong.
- IG_Semmelweiss 3y ago
  You are equating a blog post to a paper written by a small group of citizens that dared to risk station, family, and life, to pursue a dream for a nation (not selfish ends), which put them directly in the cross hairs with the superpower of the time?
MisterBastahrd 3y ago
The Federalist papers are one half of the story. It takes two sides to have an agreement, and it's a mentally convenient and lazy task to decide that because the sides came to an agreement that favored one of them, that the other is completely irrelevant to the discussion, ESPECIALLY when the nebulous task of trying to divine intent is concerned.
- 23B1 3y ago
  I'm unclear as to what about my comment led you to believe it was about reading ONLY the federalist papers.
bestcoder69 3y ago
Hindsight is 20/20 but I feel like that mistake is on the Founding Fathers. If you want us to do something, say it in the place where you put all the rules instead of hoping we'll read some other thing, y'know. Maybe a datapoint supporting the Flynn Effect?

by 23B1 3y ago

kmbfjr 3y ago

What a wordy way to admit to dismissing anyone’s argument to which you do not agree because “they have not read the…”.

23B1 3y ago
I agree. Arguments from ignorance should be dismissed.

derefr 3y ago

There seems to be a function missing from government. All governments, AFAICT. Legislators change the law (including, rarely, the constitution) — effectively by applying a hierarchy of "countermanding orders" — to suit the changing interests of the public. Courts interpret the law, but only downstream of legislation. The executive can make regulation and executive orders, but only in agreement with the law. But at the founding of any given country, something else usually happens: certain rights and laws that are already recognized intuitively become enshrined into the country's constitution. Things are written down into law not as a representation of a shift in public sentiment, but as a recognition of existing sentiment, and the desirability to formalize that sentiment as law to protect it from encroachment by legislation. Usually, this is done in the form of "representative anarchy": the people who establish a country are the people everyone rallied behind to overthrow the previous country; and because of this, they have very good knowledge of what rights their constituents were demanding that the previous government wasn't giving them. There's no trivial way to map this "representative anarchy" process of self-evident-rights information-gathering into an equivalent process that would occur within an established continuous government. But that doesn't mean it's impossible. For example, there could be a government department charged with 1. doing a kind of embedded journalism to figure out what issues "the people" are beginning to care about, that the law's stance on has no clear basis, because those issues were irrelevant when the constitution was enshrined; and then 2. coming up with referrendum-like polls to gather data on said public sentiment; where if the polls indicate a need, then at that point 3. the data will lead to a mandate for a constitutional amendment enshrining the public's desires to be created and put into force, which stands until this has successfully occurred; where 4. it is then up to the legislature and the supreme court to work together to draft the amendment; but 5. the ability to ratify the amendment is not in the hands of the legislature or the courts, but instead, this department will assemble a federal grand jury with participants from all states, which has a veto over each draft, and a congressional-subpoena-like ability to summon and retain the services of arbitrary legal experts to interpret the draft. (In est, this is trying to get as close as possible to having the public write the amendment themselves, with the legislature+courts being forced to "do the hard work" but not having any power over the result.) But exactly how such a system would work isn't really my point; my point is that there is currently no such system, and that this is perhaps a problem. In fact, it is perhaps the problem — the problem that leads to governments founded with public support increasingly failing to address the interests of the people over time; and so, to governments being overthrown and new countries being founded.

norir 3y ago
I like this idea. A somewhat related idea I've had is that instead of giving the supreme court ultimate power to overrule and/or reinterpret existing legislation they instead would be given power to call a referendum. Each justice would have the ability to attach their own revised version of the law to the referendum and there would be a voting process to determine which version of the law to accept as canonical. This would prevent the kind of situation we have right now where the court is controlled by a minority group that is imposing its views with impunity. So long as there is but one voice on the court that represents the majority public interest, the public can win out (provided elections are free and fair of course). Right now, regardless of where you fall ideologically, it is clear that the structure of the court can be exploited to impose a vision of the country that does not reflect the wishes of most of its citizens. Even those who feel ideologically aligned with the supermajority court should be concerned with the tact they are taking. It's destabilizing and planting the seeds for the institution's demise.
- notahacker 3y ago
  The problem with referenda that the function of the Supreme Court isn't writing new laws but settling individual cases according to existing law. The reason why this has wide reaching implications is because other courts are bound to follow its legal arguments as precedents with other cases (and because Supreme Court justices can sometimes rule that a particular law is inconsistent with the constitution, which they do at least in theory with the intent of preserving the constitution rather than creating a new law) The public is clearly not bound to even attempt to be consistent in its opinions from case to case, and if it's all over the place in its verdicts and might well be accepting or rejecting a verdicts for different reasons from the justices (maybe they think the legal arguments about privacy in the original Roe vs Wade were weak but also think women should have an inherent right to abortion that legislators haven't provided them with), it'ś difficult to see how lower courts can be bound by it. There's also a big question of who gets to vote, particularly for the cases where a state law is argued to be in violation of the federal constitution, which tends to be the more controversial ones...
  - 3y ago

rootusrootus 3y ago

For completeness, read the anti-federalist papers too. The collective opinion of Hamilton, Madison, and Jay is just one point of view.

bryanrasmussen 3y ago
I guess I don't get why the arguments against the Constitution of the time would be useful for "understanding the intent of the Constitution and Bill of Rights"?
- turmacar 3y ago
  Because they are directly responsible for the Bill of Rights because they felt the Constitution didn't provide enough protection/clarity in some cases.
- walterbell 3y ago
  For the same reason patch reviews can lead to code improvement.
- 8note 3y ago
  The thing that passed is always a compromise between opposing views Only reading the federalist papers gives you a stilted opinion of what caused things to be the way they are
- jean_lannes 3y ago
  The Bill of Rights came about largely as a product of anti-federalist agitation. Many prominent federalists felt that a Bill of Rights would be redundant; in federalist 84, Hamilton writes the following: > There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. [1] [1] https://avalon.law.yale.edu/18th_century/fed84.asp https://avalon.law.yale.edu/18th_century/fed84.asp

pierat 3y ago

The Federalist papers are the equivalent of a Medium blog post. And I will treat them as such. Edit: Evidently I've pissed off enough people who drink the red-white-blue kool-aid. -3 at the moment. These newspaper publishings were expressly for the solidification of power at the federal level, and the weakening of the states. And only look closer at what the "federal" powers were about, and it was all about "secur(ing) the existence of (their) people and a future for white children." (cite: 14 words) Hamilton/Madison/Jay and others knew if a strong federal law reigned supreme, his and other founders' slaves and their current wealth would be greatly solidified. And right he was. And all those slaves also gave 3/5'th a vote per human they enslaved. While many of you say it was for "selfless reasons", my only response is a great big belly laugh. So perhaps, I was wrong calling these an equivalent of a Medium blog post. No, instead they'd fit right in on the Daily Stormer or Stormfront (2 neonazi publications). Those are the types of "rights" these founders were fighting for: the rights to own another human as property.

whatshisface 3y ago
Maybe a blog post that Tim Berners Lee wrote during the standardization of HTTP.
- rainsford 3y ago
  I agree with your general point that the Federalist Papers aren't quite the same as a random blog post. But to extend that analogy further, if I'm implementing HTTP, should I base my implementation on things only found in a blog post by Tim Berners Lee? Don't get me wrong, the Federalist Papers are important historical documents and provide unique insight into the minds of the authors. But they're not laws, and treating them as if they have actual legal significance seems wrong.
IG_Semmelweiss 3y ago
You are equating a blog post to a paper written by a small group of citizens that dared to risk station, family, and life, to pursue a dream for a nation (not selfish ends), which put them directly in the cross hairs with the superpower of the time?

MisterBastahrd 3y ago

The Federalist papers are one half of the story. It takes two sides to have an agreement, and it's a mentally convenient and lazy task to decide that because the sides came to an agreement that favored one of them, that the other is completely irrelevant to the discussion, ESPECIALLY when the nebulous task of trying to divine intent is concerned.

23B1 3y ago
I'm unclear as to what about my comment led you to believe it was about reading ONLY the federalist papers.

bestcoder69 3y ago

Hindsight is 20/20 but I feel like that mistake is on the Founding Fathers. If you want us to do something, say it in the place where you put all the rules instead of hoping we'll read some other thing, y'know. Maybe a datapoint supporting the Flynn Effect?