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

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

#51

Earlier quoted context omitted.

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?

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

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

#52

> In 1995, he realized Mississippi had never ratified the 13th Amendment, which abolished slavery. So he pushed that state's Legislature to do it — and it worked. Just think about that for a second: Someone had to push the state legislature to abolish slavery in 1995. Just sickening

At least good thing they simply ratified it, instead of putting it to a vote. That could have become embarrassing, as Alabama found:

> Back in 2000, Alabama became the last state in the country to overturn its ban on interracial marriage. And despite more than three decades having passed since the Supreme Court ruled such laws unconstitutional (rendering such bans effectively moot), more than 40 percent of Alabamians still voted against overturning it.

https://www.washingtonpost.com/news/the-fix/wp/2015/02/09/al...

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

#53
post #25

Earlier quoted context omitted.

> 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?

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.

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

#54

> In 1995, he realized Mississippi had never ratified the 13th Amendment, which abolished slavery. So he pushed that state's Legislature to do it — and it worked. Just think about that for a second: Someone had to push the state legislature to abolish slavery in 1995. Just sickening

No, they ratified the amendment which had already abolished slavery, a purely symbolic act. The ratification was unanimous so it's not like there was any opposition to it in 1995.

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

#55
post #13
post #7

Earlier quoted context omitted.

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

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?

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

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

#56

Earlier quoted context omitted.

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.

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.

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.

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

#57

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.

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

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

#58

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.

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.

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

#59

Earlier quoted context omitted.

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.

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.

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.

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

#60
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 ...…

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.

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).

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