A bad grade that changed the U.S. constitution (2017) • Hacker News Board

Re: A bad grade that changed the U.S. constitution (2017)

#101

Post by wanderingmind » Thu, Aug 05, 2021, 3:36 AM UTC

xxpor wrote: post #91

wanderingmind wrote: post #88

Earlier quoted context omitted.

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 create…

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.

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.

Re: A bad grade that changed the U.S. constitution (2017)

#102

Post by jszymborski » Thu, Aug 05, 2021, 3:37 AM UTC

ohazi wrote: post #4

Catch-22: After he got the amendment ratified, there's a strong argument that the paper probably should have been given a higher grade. But had he been given that higher grade in the first place, he probably wouldn't have gone through the effort to ratify the amendment. You could argue that the paper did deserve the initial C grade, because that's what it took to get him angry enough to go and get the amendment ratif…

I mean, it could have just as easily discouraged the student and lead them to think that there's nothing there.

I hardly doubt being given an A+ and being encouraged and told that he had quite an idea there would have led him to abandon the enterprise.

Too often exceptional students perform despite poor teaching practices, and then we look to the poor teaching practices as the root of the success.

Re: A bad grade that changed the U.S. constitution (2017)

#103

Post by jjlustig » Thu, Aug 05, 2021, 3:37 AM UTC

rayiner wrote: post #70

resoluteteeth wrote: post #11

Earlier quoted context omitted.

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 curre…

> 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 be…

> 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.

Re: A bad grade that changed the U.S. constitution (2017)

#104

Post by xxpor » Thu, Aug 05, 2021, 3:39 AM UTC

rayiner wrote: post #70

resoluteteeth wrote: post #11

Earlier quoted context omitted.

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 curre…

> 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 be…

Sovereign immunity is also made up.

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

Re: A bad grade that changed the U.S. constitution (2017)

#105

Post by cletus » Thu, Aug 05, 2021, 3:39 AM UTC

jawns wrote: post #2

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 ...…

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...

Re: A bad grade that changed the U.S. constitution (2017)

#106

Post by bloaf » Thu, Aug 05, 2021, 3:40 AM UTC

deertick1 wrote: post #61

voidfunc wrote: post #36

Earlier quoted context omitted.

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 wan…

Since when has "states rights" become a rallying cry for racism or hatred? I'm really tired of people saying stuff like this : 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…

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...

Re: A bad grade that changed the U.S. constitution (2017)

#107

Post by achenatx » Thu, Aug 05, 2021, 3:40 AM UTC

Causality1 wrote: post #62

minikites wrote: post #58

Earlier quoted context omitted.

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.

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.

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.

Re: A bad grade that changed the U.S. constitution (2017)

#108

Post by jfrunyon » Thu, Aug 05, 2021, 3:43 AM UTC

resoluteteeth wrote: post #11

jawns wrote: post #2

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 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 curre…

> 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.

Re: A bad grade that changed the U.S. constitution (2017)

#109

Post by jfrunyon » Thu, Aug 05, 2021, 3:45 AM UTC

rayiner wrote: post #70

resoluteteeth wrote: post #11

Earlier quoted context omitted.

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 curre…

> 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 be…

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.

Re: A bad grade that changed the U.S. constitution (2017)

#110

Post by Maursault » Thu, Aug 05, 2021, 3:45 AM UTC

jawns wrote: post #2

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 ...…

> 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.