[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]

the civil war was about slavery If anything the federal government was too accommodating and it still wasn't enough for the slave masters who dominated southern politics

[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.

[iammisc]

It was never the case. If anything Americans are more homogeneous now than ever.

[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.

[techbio]

Not a trick question. The quality of life I am talking about is apparently different from yours.

[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.

[shadowgovt]

You make an excellent point regarding federal drug law as it relates to state-by-state legalization. It's fascinating that here we have a case of the executive blatantly refusing to enforce the law, but Congress also blatantly failing to press the issue (which they could) because they know doing so would be incredibly unpopular... But at the same time, refraining from codifying that policy into law, because doing so would be incredibly unpopular with the percentage of the electorate that still believes marijuana should be illegal.

It's weird to watch.

[macintux]

> 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.

I would say the 1st and last examples are examples of the federal government making a very bad call. The others are primarily the fault of local governments.

[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.

[xxpor]

It does seem that the history and political coalitions leading to it are wildly underdiscussed

[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.

[rat87]

this is dead wrong

The constitution is a broad documented to be interpreted

It's not a step by step manual or grocery list

> If you do not like the laws in other states, discuss and persuade the voters of those states to change their laws. Or better yet and occasionally easier get the federal government to change the law for the whole country, benefiting everyone

[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.

[minikites]

>When the government makes a bad call I want the option of leaving and going somewhere less dumb.

This is only an option for the most privileged among us. What are the options for someone who is gay and doesn't have the means to move to a less bigoted state?

[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.

[shadowgovt]

So long as the various states operated as competing democracies, they couldn't pull together into one country.

[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.