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While the Federalist Papers are great works, I don't agree with taking them as enlightened guidance from on high. They were theorizing. No one of them really kn

by TylerE 3y ago

While the Federalist Papers are great works, I don't agree with taking them as enlightened guidance from on high. They were theorizing. No one of them really knew how a modern democracy/republic would actually work in practice. Remember, the authors of the constitution (large overlap) stated on the record that they expected they got a lot of it wrong, and expected large swathes of it to be amended and replaced once actual experience was obtained. Yes, for those on one side of the spectrum the ruling orthodoxy is textual originalism. The founders themselves would have told the modern Supreme Court that it's bonkers.

adamisom 3y ago
you could even say that the USA founders’ vision is the worst ever tried—except for all those others.
- jacquesm 3y ago
  There are plenty of other countries that have similar or even better (depending on the viewpoint of the observer) systems of governance, this sort of American exceptionalism isn't rooted in an objective evaluation but simply a nice soundbite and a riff on the 'democracy' one, which has a lot more substance to it.
gottorf 3y ago
> The founders themselves would have told the modern Supreme Court that it's bonkers. > expected large swathes of it to be amended and replaced Would they have? There exists a mechanism to amend the Constitution, and it seems reasonable to me that the Supreme Court would insist on textual originalism until the text is amended through that legal process.
- TylerE 3y ago
  Here's Thomas Jefferson writing to James Madison in the early 1790s: "The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right." That's one founding father to another. Funny how the "originalists" never bring this quote up. It's one founding father, later our 3rd president, writing to another founder who would later be our 4th. Edit: Here's the full letter, and it's actually from late 1789: https://founders.archives.gov/documents/Madison/01-12-02-0248 https://founders.archives.gov/documents/Madison/01-12-02-024...
  - deleted 3y ago
    [deleted]
  - junofan 3y ago
    I’d read Madison’s reply. Everyone knows Jefferson talked a lot of shit. The other founders were used to him. This is him getting emotional in Paris during the French Revolution. He thought the proto-Cult of Reason people were a bunch of crackpots and was worried the same thing was going to happen here.
  - refurb 3y ago
    Originalists never said the Constitution can't be changed, it can and has. Originalists say that if you want to change the Constitution, then change it, don't try and interpret it in a different way just to fit what you want. That's subverting the process itself.
InTheArena 3y ago
The Supreme Court itself wasn't really defined by the constitution - they conveyed a need for it - but not how to structure it, given the lack of historical data. They also foresaw the problems with parties but didn't take enough steps to retire them. This is why things like Roe V. Wade are (/were) so controversial. Does the Supreme Court have the right to imagine new rights to abortion with no textual basis in the Constitution? Even RBG didn't think so. OTOH, given the recent election results, Abortion is finally starting to become settled law - something the USSC could not do. Democracy works again. That said - they got far more right then wrong, and ditching the lessons they learned first are a big reason we are in the state we are in now. Once upon a time, leaders actually had to learn history to be leaders. Now-adays, not so much.
- krapp 3y ago
  The Supreme Court's power of judicial review isn't defined in the text of the Constitution. It was applied by the Court to itself not by interpreting the text but reading between the lines and deciding it should have been there. It seems to me that if we can accept that then we've already accepted that the Supreme Court can imagine new rights with no textual basis in the Constitution. After all, the Constitution isn't meant to describe an exhaustive list of rights so much as maximally bind the Federal government as to what rights it is allowed to abridge. So the concept of "rights having a textual basis in the Constitution" is nonsensical, ̶a̶s̶ ̶t̶h̶e̶ ̶C̶o̶n̶s̶t̶i̶t̶u̶t̶i̶o̶n̶ ̶i̶t̶s̶e̶l̶f̶ ̶c̶l̶a̶i̶m̶s̶ ̶t̶h̶a̶t̶ ̶r̶i̶g̶h̶t̶s̶ ̶a̶r̶e̶ ̶g̶r̶a̶n̶t̶e̶d̶ ̶b̶y̶ ̶a̶ ̶"̶C̶r̶e̶a̶t̶o̶r̶,̶"̶ ̶n̶o̶t̶ ̶a̶ ̶g̶o̶v̶e̶r̶n̶m̶e̶n̶t̶.̶ (edit: ... ok that was in the Bill of Rights my bad but still, rights aren't defined by the Constitution.) Also, RBG believed abortion could be supported as Constitutional right, but she preferred an argument on the basis of equal protection over the arguments from privacy that underpinned Roe V. Wade, which she believed were too weak and easily undermined (and she was correct.) The only relevant question per the Constitution is not whether the right to an abortion exists, but whether the Federal government should be allowed to interfere with that right, whether states should be allowed to interfere with that right, or whether that right should be left in its default state of being claimed by the people.
  - AnimalMuppet 3y ago
int_19h 3y ago
The Federalist Papers themselves point out that Constitution is not meant to be a perfect document, but merely the best that everyone could agree on. "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?"
int_19h 3y ago
Yet at the same time, when re-reading them, I often find it striking just how relevant they are to some of our problems today, even though they were written by people in very different overall circumstances. My favorite for the past decade or so has been Federalist #22: "Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration." "But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy." "It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. "

by TylerE 3y ago

adamisom 3y ago

you could even say that the USA founders’ vision is the worst ever tried—except for all those others.

jacquesm 3y ago
There are plenty of other countries that have similar or even better (depending on the viewpoint of the observer) systems of governance, this sort of American exceptionalism isn't rooted in an objective evaluation but simply a nice soundbite and a riff on the 'democracy' one, which has a lot more substance to it.

gottorf 3y ago

> The founders themselves would have told the modern Supreme Court that it's bonkers. > expected large swathes of it to be amended and replaced Would they have? There exists a mechanism to amend the Constitution, and it seems reasonable to me that the Supreme Court would insist on textual originalism until the text is amended through that legal process.

TylerE 3y ago
Here's Thomas Jefferson writing to James Madison in the early 1790s: "The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right." That's one founding father to another. Funny how the "originalists" never bring this quote up. It's one founding father, later our 3rd president, writing to another founder who would later be our 4th. Edit: Here's the full letter, and it's actually from late 1789: https://founders.archives.gov/documents/Madison/01-12-02-0248 https://founders.archives.gov/documents/Madison/01-12-02-024...
- deleted 3y ago
  [deleted]
- junofan 3y ago
  I’d read Madison’s reply. Everyone knows Jefferson talked a lot of shit. The other founders were used to him. This is him getting emotional in Paris during the French Revolution. He thought the proto-Cult of Reason people were a bunch of crackpots and was worried the same thing was going to happen here.
- refurb 3y ago
  Originalists never said the Constitution can't be changed, it can and has. Originalists say that if you want to change the Constitution, then change it, don't try and interpret it in a different way just to fit what you want. That's subverting the process itself.

InTheArena 3y ago

The Supreme Court itself wasn't really defined by the constitution - they conveyed a need for it - but not how to structure it, given the lack of historical data. They also foresaw the problems with parties but didn't take enough steps to retire them. This is why things like Roe V. Wade are (/were) so controversial. Does the Supreme Court have the right to imagine new rights to abortion with no textual basis in the Constitution? Even RBG didn't think so. OTOH, given the recent election results, Abortion is finally starting to become settled law - something the USSC could not do. Democracy works again. That said - they got far more right then wrong, and ditching the lessons they learned first are a big reason we are in the state we are in now. Once upon a time, leaders actually had to learn history to be leaders. Now-adays, not so much.

krapp 3y ago
The Supreme Court's power of judicial review isn't defined in the text of the Constitution. It was applied by the Court to itself not by interpreting the text but reading between the lines and deciding it should have been there. It seems to me that if we can accept that then we've already accepted that the Supreme Court can imagine new rights with no textual basis in the Constitution. After all, the Constitution isn't meant to describe an exhaustive list of rights so much as maximally bind the Federal government as to what rights it is allowed to abridge. So the concept of "rights having a textual basis in the Constitution" is nonsensical, ̶a̶s̶ ̶t̶h̶e̶ ̶C̶o̶n̶s̶t̶i̶t̶u̶t̶i̶o̶n̶ ̶i̶t̶s̶e̶l̶f̶ ̶c̶l̶a̶i̶m̶s̶ ̶t̶h̶a̶t̶ ̶r̶i̶g̶h̶t̶s̶ ̶a̶r̶e̶ ̶g̶r̶a̶n̶t̶e̶d̶ ̶b̶y̶ ̶a̶ ̶"̶C̶r̶e̶a̶t̶o̶r̶,̶"̶ ̶n̶o̶t̶ ̶a̶ ̶g̶o̶v̶e̶r̶n̶m̶e̶n̶t̶.̶ (edit: ... ok that was in the Bill of Rights my bad but still, rights aren't defined by the Constitution.) Also, RBG believed abortion could be supported as Constitutional right, but she preferred an argument on the basis of equal protection over the arguments from privacy that underpinned Roe V. Wade, which she believed were too weak and easily undermined (and she was correct.) The only relevant question per the Constitution is not whether the right to an abortion exists, but whether the Federal government should be allowed to interfere with that right, whether states should be allowed to interfere with that right, or whether that right should be left in its default state of being claimed by the people.
- AnimalMuppet 3y ago

int_19h 3y ago

The Federalist Papers themselves point out that Constitution is not meant to be a perfect document, but merely the best that everyone could agree on. "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?"

int_19h 3y ago

Yet at the same time, when re-reading them, I often find it striking just how relevant they are to some of our problems today, even though they were written by people in very different overall circumstances. My favorite for the past decade or so has been Federalist #22: "Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration." "But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy." "It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. "