[jawns]

There have been only two amendments to the U.S. Constitution over the past 50+ years (one of which is the subject of this story).

Why? Partly because the Supreme Court has been very willing to discover hidden rights within the existing amendments, decreasing the need for states to go through the very arduous process of getting a new amendment over the finish line.

That might seem like a fine way to handle things ... if the court is discovering constitutional rights that are in line with your views.

But this workaround puts a LOT of power into the hands of the nine justices who control the judicial branch. Amending the constitution was purposefully designed to be harder to do than passing normal legislation, which requires a majority of Congress plus the president's signature. But in many pivotal cases over the past five decades, just five justices decided the outcome.

[resoluteteeth]

If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federal government narrowly) so the supreme court essentially has no choice but to make stuff up.

Obviously once they start doing that there's no real way to control what they are able to modify, but the only real way to fix it would be to completely scrap the current constitution and start from scratch (and be much more explicit about everything including rights and constitutional review). However,the constitution is now seen as something like infallible scripture in the US, plus it's impossible to get everyone to agree on anything, so that would be highly unlikely in the near future even though other to countries have been able to do it.

[jfrunyon]

> If interpreted strictly, the constitution is really not suitable for operating a modern government

Let's take that as true, 'cause I agree

> so the supreme court essentially has no choice but to make stuff up.

No. The supreme court should have continued to observe the constitution and told Congress that they needed to propose some amendments. If there was a need for them, they'd happen, just like they have in the past.

[R0b0t1]

I agree. We are where we are because there is a trend of appointing federal judges that grant the federal government more power. A lot of rulings at the federal level are morally bankrupt, easiest to see in the ones regarding the interstate commerce clause.

An inability for states to rule themselves is, I think, the driving force behind identity politics today.

[fallingknife]

Letting the states make their own decisions on issues not addressed by the constitution is a perfectly viable solution. Not sure why that would be particularly difficult.

[webnrrd2k]

The U.S. history with slavery and Jim Crow laws tell me that it's not always perfectly viable, and is sometimes very difficult.

[int_19h]

By the same token, the fact that Fugitive Slave Acts were passed back in the day would indicate that centralization isn't any more viable.

[Redoubts]

Centralization isn't viable when you give literal slavers undue influence in government, yes.

[int_19h]

"You give" implies the ability to decide that. The problem is that there's always the threat of people such as slavers, religious fanatics, ethnonationalists etc coming to power. The more that power is centralized, the more they can do with it.

And yes, conversely, when power is decentralized, you don't get "benevolent dictators" who might otherwise do some good. My point is that this argument doesn't really work if applied consistently in all cases - or, at least, not without more digging into the specifics of costs vs benefits. Personally, I'm not convinced that centralization is a net good overall, if only because it makes large standing armies possible.

[iammisc]

Except we have no problem with such diverse policy in other federations like the eu.

[Retric]

The EU is less than 30 and has already lost a member. If you accept membership flexibility then extreme diversity is much easier to accommodate.

[iammisc]

The civil war was all about membership flexibility. Is it any surprise that the losers wanted their 'divetsity' to be accommodated.

Frankly we're heading down the path of membership flexibility if the next few years don't bring about significant change.

[rat87]

But we're not like the EU We are a single nation

[int_19h]

Speaking as a foreigner who immigrated to the US, I don't see Americans as a single nation. Maybe that was the case at some point in the past, but there are too many cultural divisions by now that transcend compatriotism.

[kown7]

As others have noted, here's good argument why USA isn't a nation: https://acoup.blog/2021/07/02/collections-my-country-isnt-a-...

[xxpor]

You absolutely have a ton of problems. How many things don't launch in the EU due to differing regulations and languages?

[jltsiren]

I'm not so sure about that.

A federal state as a tight union of autonomous non-sovereign states is viable. We have plenty of examples for that. An EU-style loose union of sovereign states also works, if only barely. However, there is no evidence that a loose union of non-sovereign states would work in the present-day world. It might work, but the question is very complex, and we can't hope for a confident answer without actually trying it.

[xxpor]

We tried the latter suggestion back in the day, and it was terrible, even back then.

[BeFlatXIII]

It’s too easy for citizens to move between states. You no longer need to cross the Atlantic in a Conestoga wagon. This freedom of movement punishes states that attempt to increase their quality of life too far above the national average far more than it punishes low-quality states with brain drain.

[sershe]

It would only punish the states who would attempt to increase the quality of life for people who don't contribute to said quality. Why would others be worried? The more people move in, the better.

[techbio]

* Not so if they have a negative quality of life:

https://news.ycombinator.com/item?id=28137396

I would assume that fewer people who are already doing well will move states than will people who experiences more problems where they were.

[BeFlatXIII]

> the more people move in, the better

Or much, much worse for the locals if housing construction can’t keep pace with the population influx. Or your state does the right thing and somehow solves its homelessness problem and then homeless from around the nation arrive (or are shipped off by their home states) and overwhelm the system.

[sershe]

Well, if housing construction cannot keep up it would balance out the quality of life, right? People will move as long as negative QOL delta from expensive housing is, in their view, less than positive QOL delta from other sources.

As for the homelessness example, that is my point exactly, and the general problem with welfare state. You have to choose - restrict the access to welfare state specifically, restrict movement generally, or don't have a welfare state. I do not view welfare state as a sustainable QOL improvement (or a QOL improvement at all), so I am in favor of the last option. For me, people moving in to abuse a local welfare option is a positive development. Contrary to GGP(?), the localities that get punished are not punished for "improving quality of life"... they are punished for stupid policies.

[techbio]

This is the flipside of GP. States that increase their quality of life by sending their problems to the states that would attempt to solve them.

Name someone alive who does not contribute to the quality of life.

[sershe]

Is this supposed to be a trick question? For example, if you tax people and build a highway (or a rail line), someone driving on it/riding it but not paying taxes does not contribute to this particular QOL improvement.

Generally, there are plenty of people who do not contribute to society in any major way (e.g. even taxes), or even directly harm it.

[shadowgovt]

The history of the US has been a history of power centralization for good reason, unfortunately. The experiment of decentralized state level authority has been found wanting to the tune of a civil war and a Great depression, both of which were addressed by centralizing federal power.

[quantumBerry]

Power centralization is rarely predicated on reasons that include the benefit of common man. The US doesn't appear much different in that regard, either.

[shadowgovt]

There were two major events in US history that caused significant Federal power consolidation. Technically three, if you count the collapse of the government that was structured under the Articles of the Confederacy prior to the Constitution because it's lack of tax authority meant that it couldn't deal with the war debts that have been accrued from 1776 onward.

The first was the civil war, and federal power consolidated for obvious reasons. Easily half the states demonstrated that they could not be trusted to run their own affairs and protect the rights of the citizens enshrined in the Constitution.

The second was more subtle. The reinterpretation of the Constitution that occurred during the Great Depression granted the federal government the authority to regulate commerce within States under the interstate commerce clause. This authority drives everything from farm subsidies to drug regulation. It is a piece of federal power that people can reasonably argue about the virtue of, but in a modern comment deeply interconnected world it's reasonable to believe that the federal government needs limited central economic planning authority for the country to flourish.

[quantumBerry]

>Easily half the states demonstrated that they could not be trusted to run their own affairs and protect the rights of the citizens enshrined in the Constitution.

So instead we have a more centralized federal government that cannot be trusted to protect the rights of the citizens enshrined in the Constitution ( that same post civil war government interned the Japanese, allows police to search any vehicle with the "signal" of a dog, and instead of enslaving blacks just disproportionately tosses them to wither away in prison instead. Instead of enslaving brown people here, now our kinder gentler federal government just blow them up in foreign countries instead. )

>The reinterpretation of the Constitution that occurred during the Great Depression granted the federal government the authority to regulate commerce within States under the interstate commerce clause. This authority drives everything from farm subsidies to drug regulation.

That's the first time I've seen the war on drugs used to justify the centralization of power. I suppose we need a new civil war against the "untrustworthy" states that have legalized marijuana so affairs can be run the right way.

It's pretty "reasonable" to believe the federal government DOESN't need the authority they currently have.

[retrac]

There was another but we're still grappling with it. Nuclear weapons, and modern weaponry, the needs of real-time modern war, have transferred powers to the Executive that did not exist before in practice. It was never intended, after all, for the President to, semi-literally, have a button to press that ends the world. It arose dynamically out of a changing response to the needs of the early cold war, and has become effectively part of the unwritten constitution, without it ever really being explicitly considered how it should fit into the puzzle.

[jjlustig]

Your also forgetting the 16th amendment (federal income tax). This arguably was the critical aspect in increasing federal power.

[BeFlatXIII]

How did a lack of federal power cause the Great Depression? I can see how it took a strong Federal government to do that the states could not to end the Depression, but not how that lack of power was a cause of getting into that specific mess.

[shadowgovt]

Lack of federal power didn't cause the Great Depression, it showed that there were peacetime problems that states operating economically independently could not address.

[minikites]

How well did the states do at running their own vaccine programs? How well did it work when some states recognized gay marriage and others did not? Having nationwide consistency is important for many issues.

[Causality1]

The gay marriage issue is a great example of exactly the opposite of your point. States one by one recognizing gay marriage and proving that it wasn't going to cause the collapse of society is the only reason it was recognized on a national level. The same process is currently happening with marijuana prohibition.

[achenatx]

the first amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

the federal govt should have zero benefits tied to marriage. By having benefits tied to marriage they have essentially established religions that have male-female marriage as the default religion of the country.

if taxes, inheritance etc were not tied to marriage and instead were done with standard contracts between 2, 3 or N people (civil unions). Then the marriage problem would go away.

[rayiner]

Your reading is basically that the first amendment prohibits an otherwise permissible state law because voters support that law based on their belief in Christianity. But it would be fine for voters to support a law based on their belief in say socialism or secular humanism. That’s exactly backward—it singles out religious faith as an improper basis for supporting an otherwise permissible law.

Regardless, that clause is about the federal government not interfering with official state churches (“establishments of religion”) which existed until the 1830s.

[pyuser583]

But that only happened after the Supreme Court ruled the Defense of Marriage Act to be unconstitutional.

[minikites]

>States one by one recognizing gay marriage and proving that it wasn't going to cause the collapse of society is the only reason it was recognized on a national level.

You're leaving out the massive fights from states that did not want to recognize gay marriage, which could have easily gone the other way. The same process will repeat with marijuana prohibition and the states fighting it may succeed this time. What would have happened if gay marriage stayed as a patchwork of legal statuses? What will happen in the long run when marijuana is legal in many states but continues to send you to prison for decades in others? This is not a stable situation and the exact reason we need the federal government to do things instead of leaving it up to the states.

[thesuperbigfrog]

>> we need the federal government to do things instead of leaving it up to the states.

Unless it concerns powers specifically given to the federal government by the US constitution that would be unconstitutional: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (10th Amendment).

If you do not like the laws in your state, vote to change the laws.

If you do not like the laws in other states, discuss and persuade the voters of those states to change their laws.

[Causality1]

Why do you think the federal government is going to make smarter decisions than the average state government? I don't want to roll the dice on the feds making the right call every time. When the government makes a bad call I want the option of leaving and going somewhere less dumb. That's not an option if the dumbassery comes from Washington. It was federal overreach that made DOMA possible in the first place, as well as marijuana prohibition.

[Texasian]

* Offer only applies to straight, white men not romantically entangled with a person of color. Offer void where prohibited.

[sigzero]

That is what was supposed to happen. The Federal level has way too much power today.

[voidfunc]

Yes, unfortunately "states rights" has become a rallying cry for racism and hatred, but the original framing of this country is that the state's are basically supposed to be much stronger than the Federal government.

I don't really know whether we can unwind the federal governments grasp on things without basically destabilizing the whole thing though at this point (and admittedly, I'm not sure the majority would want to).

[shadowgovt]

It's worth noting that the original plan was for even less Federal power, and that one fell apart almost immediately.

Power has been moving in a central direction ever since.

[jessaustin]

Not so much "fell apart" as "intentionally overthrown by capitalists when they didn't agree with policies determined through democracy". Madison and his co-conspirators didn't approve of the deliberate currency depreciation and other measures voted in by farmers who fought, unpaid, for years in a war that benefited rich elites and came home to find their farms repossessed by debtors and tax collectors. So long as the various states operated as competing democracies, they were subject to the wishes of their citizens. The constitution, written in secret by a cabal of rich white men, put an end to all of that, as it was intended to do.

[deertick1]

Since when has "states rights" become a rallying cry for racism or hatred?

I'm really tired of people saying stuff like this : <insert vaguely conservative stance here> has become a rallying cry for racism and transphobia and bigotry.

Its really obnoxious and disingenuous. Give me one example of someone using states rights as a call for racism and hatred.

My guess is you probably only said what you just said because you've read enough articles by blue-haired liberal arts graduates with a sub 100 IQ.

[bloaf]

At least since the civil war.

> Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union

> The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union...

> The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States.

https://www.battlefields.org/learn/primary-sources/declarati...

[voidfunc]

> Its really obnoxious and disingenuous. Give me one example of someone using states rights as a call for racism and hatred.

https://en.m.wikipedia.org/wiki/National_States%27_Rights_Pa...

[macintux]

> Its really obnoxious and disingenuous. Give me one example of someone using states rights as a call for racism and hatred.

https://en.wikipedia.org/wiki/Orval_Faubus#Little_Rock_crisi...

> In a 1985 interview with a Huntsville Arkansas student, Faubus stated that the Crisis was due to an "Usurpation of power" by the Federal Government.

[vmception]

Little did they know that all commerce would be interstate commerce by the 20th century

The Federal government has subjugated all states, and merely tolerates their grasps at 10th amendment autonomy as it derives power from the collection of states. But it is more well funded, controls the currency, and has more land and resources under its title. States don't matter.

[chmod600]

You're mistaken. Everything is interstate commerce, whether commerce or not.

[vmception]

Haha yes Supreme Court has gone that direction over the last century.

[deelowe]

The states really screwed this up when certain ones decided their love for cotton and hatred for brown people was more important than their sovereignty.

[pyuser583]

The federal government had no problem with slavery. It was clearly enshrined in the Constitution.

[int_19h]

Slave states complained that the feds weren't doing enough to force the free states to abide by the fugitive slave laws, to give one example.

[rayiner]

> If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federal government narrowly) so the supreme court essentially has no choice but to make stuff up.

One, that’s not quite true. Sometimes the Constitution uses broad language. For example, the Commerce Clause is worded expansively. It’s probably been pushed a bit beyond the text, but the bigger impact is from vastly more activity in the country involving “interstate commerce.” Regardless, that’s well within the scope of interpretation and judgment.

By contrast, there are a number of things the Supreme Court has simply made up. Conjuring a “right to privacy” from “penumbras” of the other amendments is an example. The “reasonable expectation of privacy” formulation of the 4th amendment. The “wall of separation” of church and state. The country wouldn’t fall into the ocean without these things.

The administrative state is probably the most unconstitutional thing that’s simultaneously necessary. Specifically, regulatory agencies in the executive branch that combine legislative and judicial functions. (E.g. having the ability to promulgate rules and then adjudicate violations.) But one can imagine workarounds. E.g. executive agencies propose rules which Congress enacts. (Proposing laws is actually a function of the executive branch.)

[gassit]

I would be interested in reading some detail of the "wall of separation" of church and state being something that the Supreme Court made up. It seems quite self evident from the text of the First Amendment. And the quote seems to come directly from Jefferson?

[rayiner]

The phrase “establishment of religion” has a specific meaning: official state churches that existed at the time: https://constitutioncenter.org/interactive-constitution/inte...

Jefferson was a Francophile that had a radically different view of the first amendment than the other founding fathers. The constitution meant to create a society of religious pluralism, not French style secularism. See: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...

[jfrunyon]

The commerce clause is not worded expansively. The supreme court over the last ~century has expanded it expansively.

As far as the right to privacy, see the 9th amendment.

[sershe]

In my view, having executive agencies propose rules to congress would have been a much better solution. Why is prescriptive administrative state (i.e. outside of expert analysis that informs the decisions of others) "necessary"?

[xxpor]

Sovereign immunity is also made up.

There's a ton of things that were just so obvious as to not require writing down.

[jjlustig]

> By contrast, there are a number of things the Supreme Court has simply made up. Conjuring a “right to privacy” from “penumbras” of the other amendments is an example.

If you take the majority view from Griswold, I agree. But if you take the pre-Slaughterhouse view of the Privileges and Immunities Clause of the 14th amendment (yes, I although I loathe to say it, an originalist view), I don’t think a fundamental right to privacy can be thought of as that far fetched.

[ori_b]

> so the supreme court essentially has no choice but to make stuff up.

Or the constitution can be amended.

[ceejayoz]

Sure, but I don't blame the Court at times for going "sure, we could reject this, and cause a couple decades worth of clear, widespread harm, which might generate enough political will to push one through" and noping out.

[voidfunc]

This was Scalia's position basically.. he always held that there is a process for changing the Constitution.

[eigen]

> he always held that there is a process for changing the Constitution.

during the time Scalia was on the US Supreme Court (1986-2016), there was 1 amendment to the US constitution (27th) that was took 202 years for approvals. since I don't think he could be considered naive, it is almost certain he was disingenuous.

[jack_h]

Why would he 'almost certain[ly]' be disingenuous? He stated in at least one interview that he believed the amendment process was too onerous in its requirements.

[bobsil1]

The slaver bits (including electoral college, disproportionate Senate) need a total rewrite. Amending against bad faith pol exploits should be as frequent as Patch Tuesday.

While we’re at it, promote the non-slaver founders symbolically and strike the slavers from the currency. Rebrand as Free States of America.

[rayiner]

The Senate was there for the small states, which were evenly split between free states and slave states (whether or not you count enslaved people). Big states likewise includes free states (MA) and slave states (VA).

Don’t mix up the parts of the constitution compromising with slavery with the parts liberals just don’t like for unrelated reasons.

[bobsil1]

GOP created a bunch of low-population states (North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming) in 1889-90 to stack the Senate; and granting 2 senators per artificial perimeter is the same one-person-one-vote problem. National popular vote is the only democratically legitimate method.

[rayiner]

California had only 95,000 people when it became a state. At the time of statehood,South Dakota had 350,000 people while North Dakota had 190,000 people. There were political and economic differences (and a rivalry) between the two, due to among other things the structure of the rail networks, from the beginning: https://time.com/4377423/dakota-north-south-history-two. Both were growing very rapidly, and the southern part of the Dakota territory had held a separate constitutional convention. Harrison reportedly shuffled the bills of statehood before signing so nobody knew which became a state first—a sign of the rivalry.

Idaho had 90,000 people, and Montana had 142,000 (and was expected to vote Democrat). Montana, Washington, Wyoming, and Idaho had been separate territories for 35-50 years. This was more than many of the more eastern states had at the time of statehood. (E.g. Tennessee became a state at 75,000 people.)

We think of these states as fungible “flyover country” today, but when they were created they had very distinct identities. (Wyoming for example was a highly progressive state that allowed women to vote 50 years before the 19th amendment.) The economies were tied closely to the land (mineral deposits here or there) and the shape of the country’s rail networks. The perfectly square boundaries are somewhat artificial, but the states themselves represented quite distinct population centers and were quite populous for the time.

[iammisc]

The constitution grants pretty much unlimited power to the states, which are the primary sovereign ntity ruling over their territories.

[stormbrew]

> Why? Partly because the Supreme Court has been very willing to discover hidden rights within the existing amendments, decreasing the need for states to go through the very arduous process of getting a new amendment over the finish line.

It seems far more likely to me that the arrow of causality goes the other way here, and that the actual difficulty of passing amendments has just gone up in proportion to the number of states admitted and the progressively worsening lack of proportionality of American legislative bodies making them more and more out of tune with what people actually want in their government.

Certainly it's not inherently "good" for law to come from the bench in itself, but it seems likely enough that the US would have fallen apart long ago without it happening.

[sova]

Alright, what are the optimal ratios?

[FactolSarin]

The optimal power ratio is one person equals one unit of power.

The problem is any change to the Constitution would require 2/3 of the states to agree. Many of those states require supermajorities to pass an amendment. Generally any change that's big enough to go into the Constitution is big enough that a few people will oppose it. A few people is all it takes. We can't even pass an "equal rights for women" amendment now in the year 2021.

Hell, we probably couldn't pass the 13th amendment today if it were required.

[jfrunyon]

> We can't even pass an "equal rights for women" amendment

Why do you think an amendment would help any supposed problem with that? Equal rights for women are already mandated.

[stormbrew]

The extremely fraught battle over the actual Equal Rights Amendment would seem to disagree with the idea that this is a settled issue.

[int_19h]

You need 2/3 to propose an amendment for ratification via a constitutional convention, but the actual ratification requires 3/4, so it's even harder.

It also makes for some weird power dynamics due to extreme imbalance in state sizes. Specifically, we're at the point where the top 1/4 (i.e 12) most populated states together contain 60% of the population, and the remaining 3/4 contain the other 40%. Thus, if small states gang up, they can arbitrarily amend the constitution while representing a minority of the overall population - "tyranny of the minority", if you like. And then consider the fact that it's state legislatures ratifying amendments by a simple majority vote, not residents - which means that, in practice, the 3/4 of the legislatures voting to ratify might actually be representing something like 20% of the population. Then account for gerrymandering etc on state level, and it can be even smaller.

FWIW, the Founders themselves were well aware of problems that can stem from an arrangement like that. When Hamilton was explaining why the principles underlying the Articles of Confederation couldn't be sustained long term in Federalist Papers (#22), one of his arguments went thus:

"It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people; and it is constitutionally possible that these nine may give the vote."

And further noting that even the power to veto can be very detrimental if abused:

"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."

Reminds you of anything?..

[sova]

>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

Wow, he nailed it. I was just reflecting on this peculiarity with friends. China, for an easy-to-grab example, is able to "move fast and break things" but the US, we need the two houses of Congress and the executive to line up, and if not all three are walking the same direction, we have grid-lock, which at some times seems by-design and at other times, seems only to our detriment with "how much good may be prevented."

[int_19h]

There are surprisingly many things in the Federalist Papers that read very pertinent today. This is also from #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."

Or here's another one (#41):

"But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter."

[rcollyer]

You're ignoring the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Essentially, the bill of rights was not intended to be exhaustive, nor could it be.

[jawns]

I'm quite aware of that amendment, but here's the problem.

Some of the founders were concerned that by listing out some rights in the Bill of Rights, they would be treated as an exhaustive list and used to deny other rights that were not explicitly listed. So Madison proposed the Ninth Amendment as a way of indicating that it's not an exhaustive list. We see this approach in a lot of modern legal contracts, where the phrase "including but not limited to" is used.

But the practical implication of this amendment is that it gives the judicial branch nearly carte blanche power to say what additional, unenumerated rights the Constitution does or doesn't protect. And once the court makes a pronouncement that an unenumerated right exists, the only way to overrule it is to ... you guessed it ... ratify an amendment!

But that creates a very strange setup. SCOTUS "discovers" these unenumerated rights because it's too difficult to get an amendment ratified -- but the sole check on their authority is ratifying an amendment to veto their ruling.

[_-david-_]

The problem is more the expansion of the government beyond what the Constitution allows not the expansion of the rights of people.

[rcollyer]

The constitution is remarkably vague about all manner of things. So, the argument that the "expansion of the government beyond what the Constitution allows" is really difficult to support on a textualist basis. What exactly did you have in mind?

[krrrh]

How about the following…

> to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Being interpreted thusly…

> The government argued that if a single exception were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana and the federal government may thus regulate and prohibit such consumption.

> That argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops because of the aggregate effect of individual consumption on the government's legitimate statutory framework governing the interstate wheat market.

https://en.m.wikipedia.org/wiki/Gonzales_v._Raich

[Aerroon]

Wickard v. Filburn is crazy.

Filburn grew his own crops on his own land to feed his own animals. The government fined him under interstate commerce laws for growing too much wheat.

>The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause.

https://en.wikipedia.org/wiki/Wickard_v._Filburn

[zimpenfish]

Counterpoints: https://lawyersgunsmon.wpengine.com/2015/05/keep-reading-mcc...

https://www.lawyersgunsmoneyblog.com/2015/05/it-is-hardly-la...

> Filburn was not a hobbyist growing a little food for his family[ ...] was someone with a commercial farm who [...] wanted to take advantage of federal price supports that allowed him to sell the wheat for more than twice the price it would command on the world market. While he wanted to take advantage of the federal guarantees, however, he wasn’t willing to comply with the federal regulations, which included a production quota that was a crucial element in the price supports

[krrrh]

Thomas’ dissent really brings home the point on textualist/originalist grounds.

> If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

It’s worth adding that in addition to Justice Thomas, O’Conner and Rheinquist dissented on Raich and just a month ago Thomas noted how untenable the majority’s decision has become with regards to current law and practice around cannabis. The court was motivated to find a way to justify the federal governments blanket prohibition and produced bad law, and if the same case had come before them in 2021 it could very well have been decided differently, arguably under equal treatment provisions.

> Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.

> …

> Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment.

> …

> I could go on. Suffice it to say, the Federal Government's current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government's blanket prohibition in Raich. If the Government is now content to allow States to act "as laboratories" "'and try novel social and economic experiments,'" Raich, 545 U. S., at 42 (O'Connor, J., dissenting), then it might no longer have authority to intrude on "[t]he States' core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens." Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government's piecemeal approach.

https://reason.com/volokh/2021/06/28/justice-thomas-decries-...

[escape_goat]

The problem is that on an individual, person to person basis, people like me owe people like you a respectful hearing of what you think America is and how you think it should be and understand - this is the important thing - how you got there before telling you that it never was and why it should never be. And just flip that to whichever one of us has the facts on their side. But we don't have those conversations. We only relate to each other insofar as we signal our political affiliations.

[escape_goat]

And it always matters, who you are and how you got there.

[pvg]

I don't think this notion is really supported by the historical record. The US supreme court established the principle of judicial review (which is nowhere in the text of the constitution but is the basis for most of what the court does) barely over a decade after the first supreme court was seated. 218 years ago.

[wanderingmind]

This is an age old debate between judicial activism and judicial originalism. Most issues seem to stem from interpretation of the text.

Activist wing thinks it needs to be interpreted within the current framework of judicial, social and political viewpoints while originalism wants it to be interpreted in the way it was originally written. It's hard to say one way or another.

Activits would claim Brown vs Board created the march to racial equality, while originalist would say passing of Civil Rights Law is the appropriate way. It's a debate that is not going away anytime soon.

[tofukid]

> originalism wants it to be interpreted in the way it was originally written.

Originalists want it to be interpreted in the way it was intended. They go to great lengths to discover the original intent behind the law as it was understood at the time of writing.

https://en.m.wikipedia.org/wiki/Originalism

I’m honestly amazed that any other position but originalism is considered rationally tenable. Laws are written with an intended meaning and understanding. The idea that the intent and meaning of law should change with time is ridiculous. The law should be changed if people come to find it disagreeable, not reinterpreted. Judicial activists seek to subvert the will of the legislature, and in that way they are criminals.

[bnralt]

I don't think I've ever seen someone who's actually an originalist. For instance, I can't see how the incorporation of the Bill of Rights could possibly fit with originalism, but I haven't come across anyone who's against the incorporation of the Bill of Rights. It mostly seems to boil down to what flavor of activism you support.

[jack_h]

As Thomas has argued[1] the privileges or immunities clause of the 14th amendment, now pretty much dead letter, was intended to fully and immediately incorporate the first eight amendments to the states. In fact there are historical records from the drafter of the amendment stating as much.

[1] I don't remember the case, it may have been McDonald or Heller.

[xxpor]

Even if you're not a judicial activist, originalism for a 250 year old constitution is practically speaking, insane and unrealistic. The industrial revolution hadn't even happened yet! We have no way of knowing what the founders would have thought about modern problems.

This is not even considering that a lot of their known ideas were absolutely terrible.

[wanderingmind]

Originalism doesn't mean do not evolve. It means evolution of society must be reflected in law through the laws passed by legislature that is elected by citizenry and not by judges. It is a valid frame of view just like activism.

[xxpor]

That's simply arguing for a civil law system, which makes activism vs originalism almost irrelevant since judge's decisions aren't precedential.

[jfrunyon]

You're right. Relying on it is insane. Which is why it's amendable.

[dimitrios1]

Discover hidden rights is quite the euphemism for legislating from the bench. But credit is due for the correct answer, which is returning the balance back to the legislative branch.

[shadowgovt]

Honestly, the legislative branch can take most of the power anytime it wants. The Supreme Court interprets laws when they are vague, or when they are unconstitutional. It is loathe to consider things unconstitutional when they are plainly constitutional. But the deep division in American politics has resulted in a legislature that is almost incapable of considering major legislation that has lasting impact on Americans, much less passing it. They can certify a stamp or name a post office anytime, but something with as many moving parts as Obamacare was nearly a decade in the making and barely lurched over the finish line as a crude simulacrum of the original plan.

There's a reason Congress tends to enjoy a low-teens approval rating on aggregate (all Americans continue to vote the same legislators back into office year after year after year).

[BeFlatXIII]

The congressmen keep getting re-elected because they campaign on high-visibility make work jobs programs. Having separate primary elections does not help things, either.

[BuyMyBitcoins]

Is the 14th Amendment really written in such a way that you can justify just about anything with it? I swear most SCOTUS landmark cases end up being about the 14th. Especially those considered “legislating from the bench”.

[tedivm]

The 14th amendment is pretty open when it comes to granting freedom and not allowing discrimination.

> No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[Redoubts]

And the weird part is the courts wrote out "shall [not] abridge the privileges or immunities of citizens of the United States" but then wrote in "[substantive] due process of law" when they realized they stuffed up.

But the whole thing should have been scrapped after the civil war anyways. So much of the document, and the drawing up of states themselves, was done to balance slave-power -- something remarkably unimportant after 1865.

[nemo44x]

“Equal protection” has been subverted time and time again with the argument that making exceptions for an arbitrary demographic doesn’t take anything away from everyone else. Of course that is blind to the fact just about everything is a finite resource and that special privilege is in fact depriving people of life, liberty, and property.

[colinmhayes]

The bill of rights didn't apply to states until the 14th amendment was passed. Before it only applied to federal laws. So yea, pretty much every bill of rights case is also a 14th amendment case.

[tcj_phx]

> Is the 14th Amendment really written in such a way that you can justify just about anything with it?

The 13th, 14th and 15th Amendments to the United States Constitution are known as the Reconstruction amendments. They were passed in the aftermath of the Civil War to fix the fundamental problems in the 1792 constitution.

Reconstruction Amendments: https://en.wikipedia.org/wiki/Reconstruction_Amendments

The Bill of Rights (Amendments 1-10) had been held to only constrain the powers of the federal government.

The 11th Amendment had to do with citizens of one state suing another state. The 12th Amendment had to do with the details of electing a president and vice president, and dealt with the problem of the elected president and vice president being opponents of each other (imagine Hillary Clinton being Trump's vice president, and Trump being Biden's vice President).

The 13th Amendment abolished slavery. But it wasn't enough to say 'no slavery', as the freed slaves found they were still second-class citizens.

The 14th amendment said that citizens of the states are also citizens of the United States, and thereby they have all the rights accorded in the Bill of Rights, and required "equal protection of the laws". Section 1 is the origin of this branch of rights:

> Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Institute for Justice has some great podcasts about this period of history: https://ij.org/center-for-judicial-engagement/sc/14th-at-150...

Ep 1 - Before the Fourteenth: John Rock and the Birth of Birthright Citizenship - https://soundcloud.com/bound-by-oath/before-the-fourteenth

My efforts in the federal courts on behalf of my friend wouldn't be possible without the 14th amendment. (Summary: After the state supreme court shot me down, I found an attorney who was oddly familiar with my state court habeas corpus petitions and appeals. I said, "I don't even know that I can petition for habeas corpus on behalf of my friend." The attorney replied, "It's fully within your rights to petition for habeas on behalf of your friend, and the statutes are clear that you can. But you're dealing with a rural judge who will never rule against the community's non-profit mental health service provider." Me: 'Oh.' [I got screwed by the state judiciary.] Then the attorney said he couldn't help me, on account of his having already consulted for the person I was suing.)

Federal judges are supposed to be more insulated from local politics because they have lifetime appointments, and are thereby trusted to make politically-inconvenient decisions. In theory. In practice I think they have too much drudgery ("hard menial or dull work.") putting drug mules in federal prison to deal with fundamental mistakes in our treatment of the mentally ill. My district court judge passed the buck up to the court of appeals, who didn't want to deal with me either. I'm going to get a favorable ruling on my current appeal, I hope...

[edit: clarity]

[cletus]

On some level I'm sympathetic to the argument of the textualists (vs the "living document" philosophy. As you say there's a process for amending the Constitution. But there are a number of problems with this idea.

The first problem is those who are all about states rights tend to be selective in applying that standard. Congress passed the Fugitive Slave Act in 1850 that required free states to return slaves to return those slaves to their owners. The Supreme Court ruled (in 1859) that Wisconsin couldn't overrule a Federal court or statute. States rights anyone?

Second, if you haven't already look into the Redeemer movement of the post-Civil War era and how the Supreme Court in the name of a literal interpretation of the Constitution [1]. After the Colfax massacre of 77 or so African Americans:

> Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.

The point here isn't that textualism isn't bad per se. The point is that it itself is an interpretation of the Constitution.

You also see the effects of this as language itself changes. Two examples spring to mind:

1. The Establishment clause of the First Amendment. "Establishment" here has a very specific historical meaning stemming from the Anglican Church being the established religion of the United Kingdom. "Established" here meant the Church was responsible for what are otherwise actions under civil authority in the United States. Example: registering marriages. In England, you'd have Roman Catholic who would have two ceremonies. One in their own religion and another "official" ceremony in an Anglican Church so the marriage was official.

2. We essentially have a national firearms free-for-all all stemming from a pretty liberal interpretation of a "well-regulated Militia" from the Second Amendment.

[1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption...

[int_19h]

We do not have a "national firearms free-for-all", given that the states still have very extensive powers to regulate them, and many use those powers.

[jessaustin]

The Supreme Court has been making shit up since 1857 at the latest. They are likely to continue to make shit up for several years after the Union dissolves.

[ByteJockey]

1803 at least. They made up their own right to strike down laws (Marbury v. Madison).

Admittedly, I'm not sure what a supreme court does if they can't do that, but it's kinda funny that they bootstrapped it themselves.

[hprotagonist]

in which the supreme court said that the constitution says that the supreme court can say what the constitution says.

and everyone went along with it!

[hn_throwaway_99]

Marbury v Madison created one of the most far reaching powers of the Supreme Court - judicial review - and that was decided in 1803. Judicial review is certainly nowhere in the Constitution, and in fact the Marbury v Madison decision was so crafty that it was done in such a way to grant the enormous power of judicial review to the courts while giving the executive branch nominally what it wanted at the time.

[wahern]

There are countless papers on the subject, but this 1914 Michigan Law Review article is my favorite, and makes a convincing case that the principal of judicial review was assumed by the constitutional convention: https://www.jstor.org/stable/pdf/1274986.pdf (Edward S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, Michigan Law Review, May, 1914, Vol. 12, No. 7, pp. 538-572)

> That the members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, as I think it only proper to do, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: [...]

Basically, of all the convention members who had anything to say on the subject, 17 were clearly in favor. Those 17 comprised "fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution, and four of the five members of the Committee of Style which gave the Constitution final form." By contrast, only 3 members expressed a contrary opinion, and only 1 did so plainly--the other 2 basically disfavored any limits on the legislature, including the textually express limits.

The article later describes the evolution of judicial review in England and America, its roots in the Magna Carta and English Common Law, and how it had more firmly taken root in America (i.e. become a general principle of law that needn't restatement--many things were left unstated in the U.S. Constitution), whereas in the mid-to-late 18th century England and continental Europe legal philosophy ended up going in a much different direction as a consequence of political developments that were ultimately foreign to the American experience.

Also, one must note that England is a peculiar case. Parliament (through the House of Lords) was the Supreme Court of the land, and so it didn't necessarily violate the then nascent concept of Parliamentary Supremacy for the House of Lords to void or otherwise interpret a law seemingly in contravention of earlier passed legislation. This is noteworthy to explain how the concept of judicial review could remain consonant on both sides of the Atlantic, despite many modern English swearing up-and-down that judicial review was never accepted in England. Similarly, people like to bring up continental European examples of what a constitutional order would like without judicial review, but fail to mention that Europeans found countless aspects of English law repugnant. Just because those alternatives existed doesn't mean they would have made any sense to the sensibilities of American jurists.

In general I don't think there were many contemporaneous negative reactions to Marshall's assertion of judicial review in Marbury v. Madison; it was basically a non-issue. Almost all the commentary concerned the various other legal conclusions in his opinion (which had unanimous concurrence, FWIW), as well as a bunch of political balking--this occurred during a period of intense dispute between Federalists and Democrats leading to numerous constitutional crises, some of which aren't well known. There were a lot of gymnastics in Marshall's opinion, but they were a consequence of navigating the political environment. Indeed, grounding the opinion in judicial review, precisely because judicial review was relatively uncontroversial, is what gave it the necessary legitimacy to garner acceptance, IMO. To reject judicial review would be to reject separation of powers and the overall constitutional order as generally, if tacitly, understood by most American leaders; rhetoric notwithstanding, few were prepared to actually do that.

It's only in the late 19th and especially 20th centuries when American jurists began to seriously debate judicial review. But of course they were all over a century removed from the constitutional convention, and nearly as removed from Marbury v. Madison itself. Justice Story, who published in 1833 one of the first treatises of the American Constitution, thought judicial review uncontroversial. Story was a state legislator in 1805 and became a Supreme Court justice in 1811. Of all subsequent writers, he was the closet in time to the Marbury opinion and best able to appreciate the legal understanding of that age.

I know it's de rigueur to show how ahistorical modern constitutional law has become. But don't forget that many scholars who wrap themselves in supposed historical legitimacy often commit the same sins.

[Aperocky]

Similar to how the Roman Senate existed for more than a century after the fall of Rome.

[gpm]

Eh, the Eastern Roman Senate ceased existing sometime in the 13 or 14th century, while the Eastern Roman Empire lasted up to 1453, so if we take a bit of a more expansive view on what Rome is than "the western half because that's the half closer to western historians" the senate fell first.

[hoten]

The Roman Senate was more of a social club for at least few hundreds years prior to that. You could argue it hardly existed before the fall, except in name (losing mostly all authority when Rome transitioned from a republic to an empire).

It's pretty amusing to imagine a future with a failed-US, and how existing institutions might outlive the country. I wonder if there's been any good books using that idea?

[jbrot]

If you haven't read it yet, Neal Stephenson's Snow Crash is an excellent novel that explores something along those lines

[jessaustin]

"...the first time as tragedy, the second time as farce."

[thereare5lights]

For more information: https://en.wikipedia.org/wiki/Penumbra_(law)

[dundarious]

That's how Common Law has always worked, no? Judges make law. I would guess the rate of Amendments is inversely proportional to the stability of the country (static borders, no more domestic wars, increasing body of case law/precedent).

Textualists and originalists seem to be Civil Code fans in Common Law clothing.

[lmm]

Judges fill out the details of law that aren't in the statutes, but they're not meant to create substitute statutes from whole cloth.

[xxpor]

Sure they are. Michigan still has no murder statute. (There's a penalty statute, but the actual definition is common law).

[lmm]

There is non-statute common law from time immemorial, sure, but later law is supposed to be grounded in the stautes.

[Salgat]

This is why the Constitution is called a living document. It's malleable enough in its interpretation to remain relevant even after 2 centuries. Take away that and the constitution would no longer work for our modern society.

[Maursault]

> There have been only two amendments to the U.S. Constitution over the past 50+ years

Did you know the US Constitution and Bill of Rights was massively altered in 2008 without a two-thirds majority of Congress nor any majority of the States legislatures?[1] In fact, this is so, and it was done pretty much by one man ironically abandoning his own career-long ideology of strict constitutional interpretations with an argument entirely based on, figuratively speaking, bullshit. We know what the Founders intended because we have the minutes of the Constitutional Congress in which the Founders debated whether to include a right of self-defense in the 2nd, and this was intentionally left out. "Because most Americans believe something," is not a rational nor strictly legal means of altering the US Constitution, and, in fact, the notion floated then was not true. (Prior to 2008 most Americans did not believe the 2nd included an implicit right of self-defense... only the gunnutters pushed that garbage. Most Americans actually knew the truth, that the 2nd concerns militias.) Regardless of this mistake (or lie), this man somehow single-handedly changed the 2nd from a self-less right to protect one's neighbor from tyranny, to a selfish right to protect your television. This... after the (continuing) suspension of habeas corpus and the 5th earlier in that decade.

Changing the Constitution (what's left of it) is easy.[2]

[1] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...

[2] I may be cynical, but I'm also pretty angry about it, and it doesn't help that no one seems to care or notice that our beloved Constitution has been screwed with.

[quantumBerry]

>Prior to 2008 most Americans did not believe the 2nd included an implicit right of self-defense

Only gun nutters believe in the right to self defense?

Who has the right to keep and bear arms? Does the constitution say that the "right of the people to bear arms shall not be infringed?" If you bear arms are you no longer entitled to self defense?

Do you know who the militia is in the United States? Are you aware every able bodied male citizen between 17 and 45 are considered militia [1]?

https://www.law.cornell.edu/uscode/text/10/246

[Maursault]

> Only gun nutters believe in the right to self defense?

No. Only gun nutters believe the source of their right to self-defense comes from the 2nd, while the rest of us have that right whether there is a 2nd Amendment or not.

> Do you know who the militia is in the United States? Are you aware every able bodied male citizen between 17 and 45 are considered militia?

Are you aware that the purpose of a militia is not self-defense? It is common defense. Big difference. The 2nd has been gutted, and the assault on the Constitution continues.

> Who has the right to keep and bear arms? Does the constitution say that the "right of the people to bear arms shall not be infringed?" If you bear arms are you no longer entitled to self defense?

The right of self-defense is ancient, predating the rise of civilization and even the evolution of the human species, but if you'd like to point to a written source, how about the Magna Carta? Also, the 2nd does not say that at all unless you ignore the first three words, placed there, one could say, to underscore the importance of them. The 2nd certainly does not say, "the right of a person...." It is the right of The People. How it could be interpreted as an individual right is a bastardization and entirely against the clear intention of The Founders (and, again, we know this from the minutes of the Constitutional Congress... we know what they intended... because they debated whether to include self-defense and intentionally left it out, so we know they did not intend the 2nd to be any individual right).

Maybe the First Amendment means that all printed media should be free as in beer? Or that printing presses should be free as in beer? Or that religion and assembly should never cost anything? These interpretations would be the same kind of bastardization of The Founders' intent, grotesquely twisted from something noble and grand to something petty and cheap.

[quantumBerry]

>Only gun nutters believe the source of their right to self-defense comes from the 2nd, while the rest of us have that right whether there is a 2nd Amendment or not.

Arms are ubiquitous in modern times and the second amendment enshrines the ability for those such as the disabled and women to have a fighting chance against a violent attacker. So you're right, it only protects a certain form of self defense by virtue of allowing the implements to defend yourself (arms).

>It is the right of The People.

Did you purposefully turn "the people" into a proper noun? Do you not understand "the people" are made up of persons? "The people" of the United States are made up of persons. It does not say "the militia" may bear arms, but rather those people ( who are persons ) may bear arms.

>Maybe the First Amendment means that all printed media should be free as in beer?

Since we've gone off to the first amendment, do you believe "the right of the people peaceably to assemble" only applies to an organized militia and not individual people?

The protections of the bill of rights are protections against government, not private entities. You aren't owed something free from a private news company.

[Maursault]

> the second amendment enshrines the ability for those such as the disabled and women to have a fighting chance against a violent attacker

The 2nd Amendment never had anything to do with crime and self-defense prior to DC v. Heller 2008. Militias do not enforce law. It also, fwiw, has nothing to do with hunting. The sole original purpose of the 2nd was to be a check against tyranny. That is all it ever was until Justice Scalia invented the idea that the 2nd Amendment was a right of self-defense because most Americans (incorrectly) believed that it was... but it was not and is not true that most Americans believed a right of self-defense was included in the 2nd, only those repeating the false propaganda of the NRA.

> Since we've gone off to the first amendment, do you believe "the right of the people peaceably to assemble" only applies to an organized militia and not individual people?

You missed the point, but I'd like to see a single individual try to peacefully assemble.

[quantumBerry]

So which people are allowed to peaceably assemble? How about my wife and I? What if we also want to bear arms?

Having the ability to defend against tyranny with a weapon doesn't mean you drop your right to self defense. The 2nd amendment absolutely protects the right to bear arms as a check against tyranny. I don't understand your bone to pick as to why someone bearing arms couldn't defend themselves with them.

Edit: The bill of rights doesn't outright state a right to self defense. I'd like to see you argue why someone who bears arms (which is their right per 2A) shouldn't be able to defend their life with the arms that they have. If someone starts violently attacking my kid with a knife, do you seriously think I shouldn't be able to use arms to protect them because that's not the tyranny of the government? 2A doesn't say you have the right to keep and bear arms except in self defense. Fortunately for me, I'll be killed or imprisoned for life before someone like you takes my right to armed self defense away -- because that is the only way I'll ever stop keeping my means of self defense.

[int_19h]

That is a drastic oversimplification of the case. What happened in 2008 was a culmination of a long process that started long before then. I would argue that the starting point was the 1989 essay "The embarrassing 2nd Amendment" [1] by Sanford Levinson, who is not exactly known for his conservative views otherwise.

In general, as with every other Supreme Court case, I would recommend going to the primary source and reading the majority opinion and dissents [2], since they go over the various arguments in meticulous detail, and judge for yourself.

[1] https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?refe...

[2] https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

[Maursault]

Your comment is a Straw Man. My intention was not to summarize the case. Changing the Founders intended meaning of the 2nd to include self-defense was really outrageously skew to the case itself, and entirely unnecessary and irrelevant to the case and the 2nd. It is brazenly false NRA propaganda from the early 20th Century come to fruition and provably not the Founders' intention. The case is incidental, because its effect on the 2nd that is relevant --because the subject was the "difficulty" in changing the US Constitution: it does not take 2/3rds majority of both houses of Congress and a majority of the States legislatures. All it takes is a senile gunnutter on the bench to go beyond the mandate of the highest court and the judicial branch of government: Judges do not legislate. Yet Scalia did, and that part of the decision came out of left field (the idiom would have worked better if it was right field, but that isn't the idiom). The 2nd had a purpose, the purpose was militias, whom the Founders were devoted to, to make a standing army unnecessary, to prevent the consolidation of executive power. But now as an individual right to be armed for the purposes of self-defense it leaves the nation with less and no protection against tyranny. But at least pride has been elevated from an indulgence to a virtue. The last proper exercise of the 2nd will be the Black Panthers at the Alameda County courthouse. That was how the Founders intended the 2nd to work, not as a way to say "don't touch my stuff," not as a source of paranoid mass-delusion.

[int_19h]

The "provably not the Founders' intention" part is the one where you're wrong, and the court opinion specifically discusses this, which is why I recommend that people read it before jumping to conclusions.

By the way, one thing that's often forgotten is that 2A itself was merely an adaptation of similar clauses in state constitutions at the time (many of which explicitly spelled out self-defense as a motivation). At the same time, the original Bill of Rights was all about limiting what the federal government can do, and didn't originally limit the states at all; it was assumed that the respective state constitutions would take care of that, presumably, by expressing the will of their citizens through their own democratic mechanisms. So it's no surprise that the discussion focused mostly on militia - that was the primary concern of the states wrt potential federal government overreach.

When 14A was ratified, and then BoR amendments gradually incorporated against the states, the courts had to reinterpret them accordingly. For example, 1A says that "Congress shall make no law ...", for the same exact reason: the people who wrote it were originally concerned specifically about the power of the federal government. But today, we interpret it as applying to state governments as well, and rather more expansively - and I would hope you'll agree that it's a good thing!

BTW, you seem to be unaware that pro-gun sentiment is alive and well outside of the radical right today - it didn't end with Black Panthers. Some prominent examples include John Brown Gun Club and Huey P. Newton Gun Club.

[Maursault]

> The "provably not the Founders' intention" part is the one where you're wrong, and the court opinion specifically discusses this, which is why I recommend that people read it before jumping to conclusions.

I am afraid not. The court may have had a historical review before discussion, but they did not examine the minutes of the Constitutional Congress, where it can be read plain as day that the Founders discussed at length and intentionally rejected including a right of self-defense in the 2nd. They talked about it and decided against it. To be plain, the Framers of the Constitution did want an armed citizenry, but only for the purposes of militia, and militia for the purposes of a check on tyranny, not for crime or hunting. Back then, pretty much everyone was armed, and they wanted the armed citizenry to form militia and they wanted to prevent the government from disarming the militia. The 2nd was never about about an individual's right of self-defense. Everyone has a right of self-defense, and we do not need the 2nd Amendment to have that right. The court's decision regarding the 2nd in that 2008 case was literally pulled out of thin air, and it will only stand until someone gets around to correcting it, and it may be a technicality, but it's wrong to include self-defense because it weakens the Amendment and reduces or eliminates any check on tyranny.

The point about the Black Panthers was simply to illustrate a proper exercise of the 2nd Amendment in that famous instance at he Alameda County courthouse. Just being a gun club is not an exercise of the 2nd (in its original intent) unless that club arms themselves and assembles in such a way to put themselves' in harms way to prevent tyranny from succeeding.

[int_19h]

"Gun club" is just a name; you should look up what those guys actually do, e.g.: https://psjbgc.org/