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In my view, the US Constitution has been too successful. If it were more definitively broken, it could be repaired more easily. But there is no political will r

by alex-g 13y ago

In my view, the US Constitution has been too successful. If it were more definitively broken, it could be repaired more easily. But there is no political will right now to make any amendments at all, outside of noodling on the Internet and in wonkish circles. As it is, the longevity of the Constitution has led to its being imbued with an almost mystical character, where it's viewed as the most important force preventing anarchy and/or tyranny, and as something incredibly fragile.

bmelton 13y ago
I disagree. The failure of the Constitution is pretty broad and varied, but its failures have definitely been apparent to those who know it and are paying attention. Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake. The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller. They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there. It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently." The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle. Sorry for the rant.
- saraid216 13y ago
  > The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment. This seems to be relevant for the rest of your thing about how bad laws were made... > It's hard to imagine that any originalist text or intent would condone You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable. > The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead. > There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.
  - bmelton 13y ago
    Apologies for the errors. I was (unwisely) posting under the influence at the time. You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction. As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend. The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark. In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification. I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.

by alex-g 13y ago

bmelton 13y ago

I disagree. The failure of the Constitution is pretty broad and varied, but its failures have definitely been apparent to those who know it and are paying attention. Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake. The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller. They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there. It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently." The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle. Sorry for the rant.

saraid216 13y ago
> The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment. This seems to be relevant for the rest of your thing about how bad laws were made... > It's hard to imagine that any originalist text or intent would condone You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable. > The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead. > There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.
- bmelton 13y ago
  Apologies for the errors. I was (unwisely) posting under the influence at the time. You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction. As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend. The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark. In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification. I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.