4 ms·

My understanding is that the "flaw" was that it allows itself to be modified via the amendment process. Given his connection to self-referential problems, this

by jmcqk6 2y ago

My understanding is that the "flaw" was that it allows itself to be modified via the amendment process. Given his connection to self-referential problems, this makes sense.

pavlov 2y ago
Ironically the real problem with the U.S. constitution is that it’s much too hard to modify. The text is arcane and vague and often meaningless in a modern context, so courts can make up any interpretation they prefer. Does the constitution contain a right to privacy that allows abortion? It did for 50 years, then it suddenly didn’t. What’s a “well-regulated militia”? Anything that a particular court wants it to be. What about “emoluments”? Same. Instead of trying to squeeze new meaning out of 18th century vocabulary, a constitution should rather have a self-destruct clause. Rewrite it completely every fifty years or so. There are nations that do this kind of constitutional reset when times are good (e.g. Finland whose latest constitution is from 2000), and they seem stronger for it. Of course this is not possible in America also because culturally the constitution is much closer to scripture than to ordinary law. The Puritan heritage is in plain sight in how a legal text is treated like Moses had brought it down from the mountain.
- readthenotes1 2y ago
  "There are nations that do this kind of constitutional reset when times are good (e.g. Finland whose latest constitution is from 2000), and they seem stronger for it." Don't nations do it when times are good for the current regime, often to get rid of term limits?
cyberax 2y ago
Mr. Trump helpfully pointed out another flaw: a president can pardon whoever they want, including themselves. So it's apparently legal for Mr. Biden to send a team to assassinate all his political rivals and then just pardon them.
- chuckadams 2y ago
  Legal thinking these days is that self-pardons are meaningless, but the fact remains that the party will march so much in lockstep that there are no consequences anyway.
  - aspenmayer 2y ago
    Nixon apparently considered pardoning himself: The Pardon of President Nixon: Annotated https://daily.jstor.org/the-pardon-of-president-nixon-annotated/ https://daily.jstor.org/the-pardon-of-president-nixon-annota... > Nixon had considered pardoning himself while in office[0], and sought a legal opinion considering the constitutionality of doing so (his lawyers believed that it was constitutional). However, three days before his resignation, the Justice Department issued its own opinion to the contrary: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”[1] [0] Pardon Me?: The Constitutional Case against Presidential Self-Pardons https://www.jstor.org/stable/797310 https://www.jstor.org/stable/797310 [1] https://www.justice.gov/sites/default/files/olc/opinions/1974/08/31/op-olc-supp-v001-p0370_0.pdf https://www.justice.gov/sites/default/files/olc/opinions/197... In the context of Trump: Explaining the presidential self-pardon debate https://constitutioncenter.org/blog/explaining-the-presidential-self-pardon-debate https://constitutioncenter.org/blog/explaining-the-president... > On Monday, June 4, 2018, President Donald Trump said on Twitter that, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”[2] His comments echoed those made by Rudy Giuliani, his attorney, on Sunday. > Here is a brief explanation of the President’s clemency powers, some past cases, and a theoretical look at a Nixon-era question: Can a President pardon himself or herself? [2] https://twitter.com/realDonaldTrump/status/1003616210922147841 https://twitter.com/realDonaldTrump/status/10036162109221478...
- aspenmayer 2y ago
  Not so according to the Justice Department. https://www.justice.gov/sites/default/files/olc/opinions/1974/08/31/op-olc-supp-v001-p0370_0.pdf https://www.justice.gov/sites/default/files/olc/opinions/197... I elaborate on this in a reply to your interlocutor downthread: https://news.ycombinator.com/item?id=40383391 https://news.ycombinator.com/item?id=40383391

by jmcqk6 2y ago

My understanding is that the "flaw" was that it allows itself to be modified via the amendment process. Given his connection to self-referential problems, this makes sense.

pavlov 2y ago

Ironically the real problem with the U.S. constitution is that it’s much too hard to modify. The text is arcane and vague and often meaningless in a modern context, so courts can make up any interpretation they prefer. Does the constitution contain a right to privacy that allows abortion? It did for 50 years, then it suddenly didn’t. What’s a “well-regulated militia”? Anything that a particular court wants it to be. What about “emoluments”? Same. Instead of trying to squeeze new meaning out of 18th century vocabulary, a constitution should rather have a self-destruct clause. Rewrite it completely every fifty years or so. There are nations that do this kind of constitutional reset when times are good (e.g. Finland whose latest constitution is from 2000), and they seem stronger for it. Of course this is not possible in America also because culturally the constitution is much closer to scripture than to ordinary law. The Puritan heritage is in plain sight in how a legal text is treated like Moses had brought it down from the mountain.

readthenotes1 2y ago
"There are nations that do this kind of constitutional reset when times are good (e.g. Finland whose latest constitution is from 2000), and they seem stronger for it." Don't nations do it when times are good for the current regime, often to get rid of term limits?

cyberax 2y ago

Mr. Trump helpfully pointed out another flaw: a president can pardon whoever they want, including themselves. So it's apparently legal for Mr. Biden to send a team to assassinate all his political rivals and then just pardon them.

chuckadams 2y ago
Legal thinking these days is that self-pardons are meaningless, but the fact remains that the party will march so much in lockstep that there are no consequences anyway.
- aspenmayer 2y ago
  Nixon apparently considered pardoning himself: The Pardon of President Nixon: Annotated https://daily.jstor.org/the-pardon-of-president-nixon-annotated/ https://daily.jstor.org/the-pardon-of-president-nixon-annota... > Nixon had considered pardoning himself while in office[0], and sought a legal opinion considering the constitutionality of doing so (his lawyers believed that it was constitutional). However, three days before his resignation, the Justice Department issued its own opinion to the contrary: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”[1] [0] Pardon Me?: The Constitutional Case against Presidential Self-Pardons https://www.jstor.org/stable/797310 https://www.jstor.org/stable/797310 [1] https://www.justice.gov/sites/default/files/olc/opinions/1974/08/31/op-olc-supp-v001-p0370_0.pdf https://www.justice.gov/sites/default/files/olc/opinions/197... In the context of Trump: Explaining the presidential self-pardon debate https://constitutioncenter.org/blog/explaining-the-presidential-self-pardon-debate https://constitutioncenter.org/blog/explaining-the-president... > On Monday, June 4, 2018, President Donald Trump said on Twitter that, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”[2] His comments echoed those made by Rudy Giuliani, his attorney, on Sunday. > Here is a brief explanation of the President’s clemency powers, some past cases, and a theoretical look at a Nixon-era question: Can a President pardon himself or herself? [2] https://twitter.com/realDonaldTrump/status/1003616210922147841 https://twitter.com/realDonaldTrump/status/10036162109221478...
aspenmayer 2y ago
Not so according to the Justice Department. https://www.justice.gov/sites/default/files/olc/opinions/1974/08/31/op-olc-supp-v001-p0370_0.pdf https://www.justice.gov/sites/default/files/olc/opinions/197... I elaborate on this in a reply to your interlocutor downthread: https://news.ycombinator.com/item?id=40383391 https://news.ycombinator.com/item?id=40383391