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

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

#21

Post by ori_b » Thu, Aug 05, 2021, 1:20 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…

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

Or the constitution can be amended.

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

#22

Post by _-david-_ » Thu, Aug 05, 2021, 1:20 AM UTC

rcollyer wrote: post #19

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 ...…

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.

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

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

#23

Post by dundarious » Thu, Aug 05, 2021, 1:24 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 ...…

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.

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

#24

Post by nemo44x » Thu, Aug 05, 2021, 1:25 AM UTC

tedivm wrote: post #17

BuyMyBitcoins wrote: post #5

Earlier quoted context omitted.

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”.

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.

“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.

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

#25

Post by sova » Thu, Aug 05, 2021, 1:26 AM UTC

stormbrew wrote: post #18

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 ...…

> 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…

Alright, what are the optimal ratios?

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

#26

Post by lmm » Thu, Aug 05, 2021, 1:26 AM UTC

dundarious wrote: post #23

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 ...…

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.

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.

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

#27

Post by fallingknife » Thu, Aug 05, 2021, 1:27 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…

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.

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

#28

Post by sigzero » Thu, Aug 05, 2021, 1:28 AM UTC

fallingknife wrote: post #27

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…

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.

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

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

#29

Post by rcollyer » Thu, Aug 05, 2021, 1:29 AM UTC

_-david-_ wrote: post #22

rcollyer wrote: post #19

Earlier quoted context omitted.

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.

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

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?

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

#30

Post by bobsil1 » Thu, Aug 05, 2021, 1:30 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…

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.