[delichon]

> How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?

Specificity plus brevity plus non-delegation add up to a limit on the load of law that we are subjected to. It's the bias toward freedom of individual action of classical liberalism. You are entirely correct that this kind of limitation would be crippling to a software project. Gorsuch just doesn't think that the state should have that degree of detailed control.

[WalterBright]

The Bill of Rights is a specific list of things that government cannot do. It's been under constant assault ever since.

Something to keep in mind when thinking about Chevron.

Consider the 2nd Amendment. I'm not a gun nut, and in the abstract don't care much if gun ownership was banned. However, that would require simply ignoring the 2nd Amendment. If the 2nd can be ignored, ignoring the rest cannot be far behind.

When you let a tiger into your house to get rid of the dog, the tiger won't stop there.

[RandomThoughts3]

The position is weird to this European.

A constitution is not a sacred text but a very practical one. The constitution of my country went trough five major rewrites and was amended approximately a dozen of times since the last rewrite and somehow we are still a liberal free country.

The idea that touching it in any way or form is a slippery slop leading to less rights is a fallacy.

[drdeca]

It isn’t that “touching it” is a slippery slope, but that ignoring part of it is a slippery slope.

If an amendment is passed to change the 2nd amendment, that’s one thing.

But not doing that, and just banning private gun ownership (or whatever law one might want to pass that goes against the second amendment) anyway, would be a rather different thing.

[WalterBright]

Is it? Having rights has historically not been a stable configuration. There are constant efforts to abrogate them.

It's amazing the US has lasted as long as it has, although I've lived long enough to see a significant erosion of rights.

For example, civil asset forfeiture.

[lupusreal]

The Constitution isn't meant to be immutable, the Constitution itself specifies a process for changing the Constitution. That process has been used numerous times before, so we know it can work. The people who want to ignore that process are people who want to change something in the Constitution but lack the requisite political support to do it properly. This is why they get told off.

The Second Ammendment could be nullified with a new Amendment that undoes the Second, but this isn't seriously entertained by gun control activists in America because it would be extremely unpopular so there's no way they could pull it off. Instead, they intend to simply ignore the law.

[RandomThoughts3]

Sure but the explanation conveniently sidesteps the issue with the senate lack of actual representativity. Even a popular law could easily be blocked by a small minority in the rural states.

Anyway I’m not American. The quality or lack thereof of the US political system doesn’t really affect me. Would appreciate the US getting its act together when it comes to GHG emission however because we share the same planet.

[tpmoney]

The senate has plenty of representativity. Is China or India any less represented at the UN because they have the same number of votes as Cuba and Micronesia? Surely there are a few "popular" items China or Russia might like to see passed that are blocked by "a small minority in the rural states" of Europe?

Beyond that, the states themselves can petition for a constitutional convention. 2/3s of the state legislatures would be all it takes to kick that process off, no senate "representativity" required (unless I suppose the senate wanted to argue that "congress shall call a convention" does not obligate congress to do so. But I suspect that's a constitutional crisis even the most obstructionist senators would be reluctant to take on in the face of 2/3s of the states actually petitioning congress.

[RandomThoughts3]

> Is China or India any less represented at the UN because they have the same number of votes as Cuba and Micronesia

Yes, very much so. That’s part of why the UN is not taken very seriously and why the security council exists.

> The senate has plenty of representativity.

Debatable. It was certainly fit for purpose when it was set in place. Is it appropriate nowadays? Probably not, especially when you consider how it impacts the electoral college.

I tend to find the USA political system a bit dubious (I think the same of the one of my own country to be clear and I generally have a poor opinion of presidential systems anyway). Still, the country has been mostly stable until now so I guess it’s fit for purpose.

[lupusreal]

> Sure but the explanation conveniently sidesteps the issue with the senate lack of actual representativity

That complaint isn't addressed by empowering political appointees from the executive to write laws the courts aren't allowed to challenge. Least of all, laws which violate he Bill of Rights!

[baix777]

The gun nuts have convinced so many people there is only one way to read the 2nd amendment.

"Despite the Supreme Court’s rulings in Heller and McDonald, many constitutional historians disagreed with the court that the Second Amendment protected an individual right to “keep and bear Arms” for the purpose of self-defense in the home. Indeed, for more than two centuries there had been a consensus among judges as well as scholars that the Second Amendment guaranteed only the right of individuals to defend their liberties by participating in a state militia. However, by the late 20th century the “self-defense” interpretation of the amendment had been adopted by a significant minority of judges. The self-defense view also seemed to be taken for granted by large segments of the American public, especially those who consistently opposed gun control."

https://www.britannica.com/topic/Second-Amendment

[tpmoney]

They've done that because other readings require some pretty significant twists and turns to get there. Some are more reasonable than others, but take "guns" out of the equation and the individual right becomes obvious. Consider the following text:

"A well educated electorate, being necessary to the proper functioning of a democratic state, the right of the people to keep and read books, shall not be infringed."

A reading of the 2nd amendment that doesn't see it as an individual right means we must read the forgoing as protecting the right to keep and read books only for the class of people that are eligible to vote, and only in the service of educating them. And realistically, if you put that text on a multiple choice SAT with the question "Who has the right to keep and read books?" I don't think you're going to get many people answering "only people eligible to vote".

Beyond that, to read the 2nd amendment as not protecting an individual right would also require an interpretation of a right of "the people" to mean something other than every other reading of "the people" throughout the rest of the document:

* The right of "the people" to peaceably assemble as outlined in the first amendment is not limited to members of religious orders or members of "the press".

* The right of "the people" to be "secure in their persons, houses, papers, and effects" is certainly not limited to some government defined collection of people who only have that right while they are collectively acting.

* The "person" whose rights are protected by the fifth amendment has been time and again ruled to be an individual.

* The tenth amendment clearly distinguishes between the federal government, the states and "the people". If "the people" are supposed to be the militia, how then are they distinct from the federal government or the state?

* The fourteenth amendment refers to "persons" and their privileges, immunities, life, liberties and property. But how could the state infringe on the rights of those people if the people are the militia and the militia is an arm of the state?

It seems strange that in a collection of amendments specifically in place to outline some hard limits on government power and particularly with respect to individuals under that government, that one and only one of those limits was to restrict the government from limiting another arm of the government, but in terms that referred to individuals in every other case it was used.

[aredox]

Ah yeah, we all saw the slippery slope when the 18th amendment was repealed

[alan-hn]

Then you get loopholes being abused

[prpl]

And conveniently, court cases that will inevitably be appealed to a supreme court.

The ambiguity, of course shifts the power to the courts to resolve.

[sirspacey]

Most laws are written in response to harm. The goal is to prevent the harm, but how to achieve the goal is not something you can encode into law in some kind of recursive function. Context matters.