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How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists

by rayiner 11mo ago

How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents. Go read the Federalist Papers. The founders thought very hard about who should exercise which powers and how they should be selected. They did not intend for 99% of the actual government operations to be run by “independent” executive officials that were insulated from elections. That’s something we made up in the 20th century in response to trendy ideas about “scientific government.”

zimpenfish 11mo ago
> The founders thought very hard about who should exercise which powers and how they should be selected. Which would be perfectly fine as a basis if we were still in the 18th century. Things are, I believe, somewhat different now and what a bunch of rich old white men thought then isn't all that relevant now except as a historical oddity.
- rayiner 11mo ago
  If you think what the founders said doesn’t matter because they’re dead white guys, isn’t that an argument for giving more power to the guy who won the election? Because surely the dead hand of the founders is the only thing that has the authority to overrule the elected President. It has to be a dichotomy, right? You either go by what the constitution meant to those who wrote it, because that’s how written agreements work, or otherwise you go with what the mob wants. How can there be some third option?
  - archagon 11mo ago
    No, why would it have to be a dichotomy? That doesn't make any sense. For example, the Catholic Church is neither (solely) defined by a set of 2,000 year old writings, nor is it under strict authoritarian rule by the elected Pope. The Church has been gradually sculpted and steered by centuries of councils, disagreements and reconciliations, power struggles, competing institutions, and much more. It is its own thing, defined by precedent and history and nearly unrecognizable when compared across centuries.
    - rayiner 11mo ago
      The approach of the Catholic church is internally consistent, because it is premised on the existence of divine law which the church as an institution is specially entrusted with conveying to the laity. That approach makes no sense in a secular democracy. There is no divine law to interpret, and there is no body like the Catholic church charged with mediating between divine law and the laity. The only source of authority is the consent of the governed. The constitution and amendments reflects the consent of a supermajority that can bind subsequent majorities. But any intermediate majority can be overruled by a subsequent majority. In that framework, the only sources of authority that can overrule the present majority are the edicts previously sanctioned by supermajorities. And the only relevant meaning of those edicts is what they would have meant to the people who consented to them. If you dispense with the idea that the intent of the framers matters, then you’re dispensing with the authority of the supermajority that consented to what the framers wrote. That leaves only the present majority as the only source of authority.
jfengel 11mo ago
The Federalist Papers is not "the founders". It's Alexander Hamilton and James Madison. There were numerous factions running around the Constitutional Convention, and they negotiated the final document together. I don't understand why the Federalist Papers gets cited as if it were part of the Constitution. It is not a definitive source of anything except the opinion of those two (three, with Jay) men.
- rayiner 11mo ago
  The Federalist Papers reflects the views of the majority faction of those who wrote the constitution. You can get the minority opinion in the Anti-Federalist papers. But find me any contemporaneous document that suggests the framers thought power should be exercise by unelected bureaucrats insulated from oversight by elected officials.
buerkle 11mo ago
Technically late 19th century with https://en.wikipedia.org/wiki/Interstate_Commerce_Commission https://en.wikipedia.org/wiki/Interstate_Commerce_Commission
miltonlost 11mo ago
The fact that you still call the "founders" the "founders" as if they were a single unified person/entity with non-conflicting values shows me what kind of "originalist" jurisprudence you go for.
curt15 11mo ago
>How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents. And in doing so they reshaped the precedent. One can't claim Brown v Board is not precedent just because Plessy v Ferguson already spoke on the same matter.
- rayiner 11mo ago
  I’m responding to the OP’s criticism that proponents of the unitary view of the executive “believe this is the government defined by the Constitution, regardless of precedent.” It seems odd to complain about giving insufficient respect to precedent, when that precedent itself overruled a prior precedent. I agree precedents should be overruled when they are contrary to the text of the constitution, such as when Brown overruled Plessy. There are a lot of 20th century precedents that are wrong and are based more on convenience and a desire to appease FDR than on the text of the constitution.

by rayiner 11mo ago

zimpenfish 11mo ago

> The founders thought very hard about who should exercise which powers and how they should be selected. Which would be perfectly fine as a basis if we were still in the 18th century. Things are, I believe, somewhat different now and what a bunch of rich old white men thought then isn't all that relevant now except as a historical oddity.

rayiner 11mo ago
If you think what the founders said doesn’t matter because they’re dead white guys, isn’t that an argument for giving more power to the guy who won the election? Because surely the dead hand of the founders is the only thing that has the authority to overrule the elected President. It has to be a dichotomy, right? You either go by what the constitution meant to those who wrote it, because that’s how written agreements work, or otherwise you go with what the mob wants. How can there be some third option?
- archagon 11mo ago
  No, why would it have to be a dichotomy? That doesn't make any sense. For example, the Catholic Church is neither (solely) defined by a set of 2,000 year old writings, nor is it under strict authoritarian rule by the elected Pope. The Church has been gradually sculpted and steered by centuries of councils, disagreements and reconciliations, power struggles, competing institutions, and much more. It is its own thing, defined by precedent and history and nearly unrecognizable when compared across centuries.
  - rayiner 11mo ago
    The approach of the Catholic church is internally consistent, because it is premised on the existence of divine law which the church as an institution is specially entrusted with conveying to the laity. That approach makes no sense in a secular democracy. There is no divine law to interpret, and there is no body like the Catholic church charged with mediating between divine law and the laity. The only source of authority is the consent of the governed. The constitution and amendments reflects the consent of a supermajority that can bind subsequent majorities. But any intermediate majority can be overruled by a subsequent majority. In that framework, the only sources of authority that can overrule the present majority are the edicts previously sanctioned by supermajorities. And the only relevant meaning of those edicts is what they would have meant to the people who consented to them. If you dispense with the idea that the intent of the framers matters, then you’re dispensing with the authority of the supermajority that consented to what the framers wrote. That leaves only the present majority as the only source of authority.

jfengel 11mo ago

The Federalist Papers is not "the founders". It's Alexander Hamilton and James Madison. There were numerous factions running around the Constitutional Convention, and they negotiated the final document together. I don't understand why the Federalist Papers gets cited as if it were part of the Constitution. It is not a definitive source of anything except the opinion of those two (three, with Jay) men.

rayiner 11mo ago
The Federalist Papers reflects the views of the majority faction of those who wrote the constitution. You can get the minority opinion in the Anti-Federalist papers. But find me any contemporaneous document that suggests the framers thought power should be exercise by unelected bureaucrats insulated from oversight by elected officials.

buerkle 11mo ago

Technically late 19th century with https://en.wikipedia.org/wiki/Interstate_Commerce_Commission https://en.wikipedia.org/wiki/Interstate_Commerce_Commission

miltonlost 11mo ago

The fact that you still call the "founders" the "founders" as if they were a single unified person/entity with non-conflicting values shows me what kind of "originalist" jurisprudence you go for.

curt15 11mo ago

>How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents. And in doing so they reshaped the precedent. One can't claim Brown v Board is not precedent just because Plessy v Ferguson already spoke on the same matter.

rayiner 11mo ago
I’m responding to the OP’s criticism that proponents of the unitary view of the executive “believe this is the government defined by the Constitution, regardless of precedent.” It seems odd to complain about giving insufficient respect to precedent, when that precedent itself overruled a prior precedent. I agree precedents should be overruled when they are contrary to the text of the constitution, such as when Brown overruled Plessy. There are a lot of 20th century precedents that are wrong and are based more on convenience and a desire to appease FDR than on the text of the constitution.