Is Constitutional Obedience Damaging America?
That is the question raised in the latest Econtalk podcast, wherein Russ Roberts interviews Constitutional law professor Louis Michael Siedman.
Siedman argues that one of the central principles of US government, that the Constitution is the supreme law of the land and all government activity must be concordant with it, is fundamentally flawed. This is an unusual position for a Constitutional law professor to say the least, but it makes for a fascinating discussion between Siedman and Roberts, who is much more in favour of constitutional limits.
If you have a spare hour, I strongly recommend listening to the podcast, for one thing its a master class on civilised discussion between two opposing viewpoints. Roberts pushes back on Siedman’s arguments, but never tries to shut him down.
I thought this would make for a good topic of discussion here at the League. Does it make sense to require government to adhere to the Constitution? In case you don’t have time to listen to the podcast, you can read the transcript at the podcast’s page.
Here are Siedman’s main arguments:
- There are successful countries with no Constructional limits (The UK, New Zealand and Israel), and many utterly dysfunctional governments have constitutions.
- It is irrational to grant people who have been dead for centuries more power over the government than living people have.
- It is authoritarian (his word) to allow people to shut down a policy idea by constitutional fiat. Policy debates should be driven by reasoned argument, not “this is unconstitutional so shut up”.
- The immense difficulty of amending the US Constitution has made it too unwieldy to be useful. There are many issues in which the government has to ignore it to get things done, from the profound (the Emancipation Proclamation) to the mundane (the term lengths of senators for a new state).
- Any constitution is subject to interpretation and must be enforced by some part of the government of the day. In practice, the government of the day can get away with a lot of unconstitutional activity at the moment.
- The Supreme Court often has to employ a lot of interpretation to fit the issue in front of them into the framework of the Constitution. This makes their task very subjective and political, which calls into question the official role of the Supreme Court as dispassionate arbiters of law.
Personally, I find Siedman’s arguments a little dubious. He spent way to much time pushing the “why do we care what these old dead guys think?” question, which strikes me as a little besides the point. There is a standard principle that a law last indefinitely unless it is explicitly sunsetted or until it is repealed I mean, New Zealand’s Crimes Act (the Act that covers basic crimes like theft and murder) is 105 years old now, I very much doubt any New Zealander still lives who was voting age at the time it was adopted. Does that mean that people should feel free to ignore it? Or is 105 still too young? Just how old does a law have have to get before we declare it obsolete? I really don’t see why the Constitution should be treated differently.
I’m also somewhat suspicious of the “it’s too hard to amend” argument. Is it too hard, or is it just that a sufficient consensus doesn’t exist on the big issues? The whole point after all is to counter majoritarianism. Simply saying that the majority can’t get its way is an insufficient critique. If it is indeed too hard to amend the Constitution, why not call for the amendment process to be amended? Or for that matter, call for a convention and start from scratch. For all that Siedman favours using persuasion over coercion, he seems to feel little need to persuade the people with the power to amend the Constitution to do what is in their power to do.
The one argument of his I did think was worth considering was the argument from futility – that in practice the Constitution is already routinely ignored, so what’s the point? I don’t know how inevitable this is, but if it is largely inevitable that a Constitution will be ignored then there isn’t much point in having one.
Overall, I wish Siedman has done some more thinking about which alternative to the <i>status quo</i> he preferred that, without that vital context it was very difficult for me to really get to grips with his arguments.
So what do the rest of you think about this question? Does it makes sense to limit the government with a Constitution? If so, what limits should be imposed and how easy should they be to change?
I don’t know that I’d favor no constitution whatsoever, but the idea that it should sunset every 50-100 years seems salutary (or it could even rotate among several forms of government–switching from proportional representation to presidential system to constitutional monarchy every so often. That’d be a good way to shake loose entrenched power structures of all sorts)Report
i want to move to a Gygax based Government where all decisions are resolved with a D-20 and a chart.Report
As long as I have a plus 15 shield against the effect of government decisions.Report
Dude, +5 is like the highest it gets.
Your comment is like saying “beam me up, Chewbacca.”Report
Fish Gygax. We never let him make the rules for us.Report
At long last, I have the occasion to unleash this:
http://www.lolroflmao.com/2011/08/03/use-the-force-harry-gandalf/Report
now thats just awesomeReport
actually shaz i planned on using the epic level book for our Gygax gov.(setting up a gov being epic in my mind) It allows for items over +5. they just cost much much more. i have run campaigns where you trade a small platinum moon for a nice sword before.
and as a 29th level vice president i can cast Russenkainen’s Disjunction at will. then that shield will only protect him from the department of T.R.O.L.L.Report
no but if you dont like the gov decisions we can just kill the campaign and reroll an gov character sheet.
thats the joy of the D&D gov. dont like it, well time for a new campaign anyway.Report
I kinda like this idea, but I don’t see how you could keep the entrenched interests from writing a constitution that would further entrench them.Report
I think a constitution is useful to set a general framework. But a constitution isn’t supposed to consist of every rule, reg and how-to about a gov. It is more about process and limits. Within those processes and limits there should, and is, a lot of room to figure things out. Its not possible to write a general statement of concepts that will survive the immense changes our world goes through without significant leeway in making adjustments to policies.
If we were to have another Constitutional convention the key problem would be people wanting to put specific policies instead of generalities. It is hard to amend our constitution. It was supposed to be that way. The sainted founders didn’t think every frickin plan, idea, bill, or expenditure had to go through an amendment. While countering majoritarian over influence is reasonable we also have a senate for that.Report
Its not possible to write a general statement of concepts that will survive the immense changes our world goes through without significant leeway in making adjustments to policies.
You know… I agree with you of course. But I think we underestimate how different this looks from our perspective vs. the framers. Their world actually didn’t change that much from generation to generation. Or perhaps, at best, it was only starting to change more rapidly due to industrialization. If you lived a thousand years ago you lived in a world that was almost identical to the world of your great-great-grand-parents and your great-great-grand-children would live in a world almost identical to yours. Oh, there was history, certainly. Wars and other political events, but really, only the names of the people in charge would rotate in and out, but your daily life was a pretty constant grind.
I guess what I’m getting at is that from their perspective it actually wouldn’t have been unreasonable to assume that they could create a lasting framework for government since there would be little reason to assume that the world of a century or more hence would actually be much different. If they could create something that worked for them, it should work for us just as well.
But now, living in a world that they would consider literally magical… perhaps not so much.Report
That’s a really good point.Report
Yes and no. Technology is certainly much different and better. But human nature isn’t really any different now than it was in 1787. To some extent, the rules were written the way they were when considering the practical limits of life in 1787 and trying to create effective government within those limits. So by all means let us do now with telecommunication and computers what the Framers could not do with quills and horses. But let us not be blinded by the power of our tools into thinking that we are fundamentally different than the people of previous generations.Report
What Burt said.
I see this argument frequently, that technology’s advance should render the Constitution or the framers’ intent obsolete (or at least deprecate it). But I never really seem to see this argument applied to a specific issue or Constitutional question – obviously advanced tech has a real impact on current copyright law, but in my understanding Congress is already explicitly empowered to make copyright law, so no monkeying with the Constitution is even required on that one.
Something like universal health care, it seems to me, is either allowable or not under the constitution (or maybe the answer is “it depends”) – but the question itself of whether it’s allowable, seems to have little to do with technology’s advance. Similarly, my speech should be free (or not), regardless of how advanced a megaphone I am using.
IOW, this argument often seems like a non sequitur or a distraction to me. “Look over there, shiny cell phones and computers!”Report
Just so long as you’re cool with a reading of the Fourth Amendment that makes emails you send using anyone else’s transmittal system means it’s essentially not safe from unreasonable search. Cuz that is how the Fourth Amendment as it was written mapped onto new technology all the way until a 2005 decision.
These matters are just flat-out not self-settling, nor are the settlement questions necessarily obviously or easily settled. The law itself may not change (or it may), but one thing that does not happen is that technology and law, each left to its own devices, just work themselves out according to whatever is meant to happen in a Platonic world where if the law is just correctly applied to every conceivable new set of facts, its true meaning will always be advanced. it isn’t actually that simple.Report
I didn’t mean to imply that these matters were simple, or self-settling, or would work themselves out. If I gave that impression I apologize.
What I mean is, the mere fact of technology’s advance does not automatically obviate or deprecate the original intent of those words.
To use your example, if e-mail has now basically replaced the post, and we want to be free of unreasonable search and seizure (which I assume we all do) then we would be well-served to say – “OK, we don’t write letters on paper and stick them in envelopes and send them on horseback anymore; but what were the framers trying to do when they wrote ‘unreasonable search and seizure'”? – then apply that principle to e-mail.
We don’t throw out the principle because, hey, e-mail!
Does that make more sense?Report
But it’s just as easy to imagine someone saying “surely the fathers could not have foreseen crazy people conspiring together against the government and printing off screeds advocating revolution when they wrote the First Amendment!”
And it’s even easier imagining people nodding along.Report
Jaybird, I hear the complaint you’re making here, but it isn’t relevant to Glyph point. His argument is that the application of the principle to new situations can be informed by looking more deeply at Framer’s purpose for putting that provision in place. Your argument is political: that people can be stupid and advocate for policies based on ignorance.Report
It seems to me that looking at the Framer’s purpose is exactly what opens the can of worms.
Isn’t it easier to just look at what was said?
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Why wouldn’t I come to the conclusion that this means that if you want to search my effects, you need a warrant that specifically mentions what effects you’ll be searching?
The moment you say “what was the framers’ purpose?”, you open the door for “they couldn’t have foreseen a group of people who wanted to keep secrets from the authorities and, as such, we can easily conclude that their purpose did not, in fact, cover stuff like Jose Padilla.”Report
I agree with this. But you wouldn’t come to that conclusion simply because that’s not what the sentence says. It just says that no searches can be unreasonable and warrants must have probable cause. It doesn’t say that any search without a warrant is unreasonable. So it starts really early.Report
Ahh. Yes. I misunderstood you up there.Report
That word “unreasonable” does a hell of a lot of the work, though. It leaves the question of “reasonable” entirely to the courts.
If they’d left that out, we’d have much stronger privacy provisions.Report
but what were the framers trying to do when they wrote ‘unreasonable search and seizure’”
But that’s just completely backwards, it seems to me. If the Framers thought a restriction on unreasonable search and seizure was justified, then it’s those justificatory arguments, and not the idiosyncratic beliefs held by individual Framers, that matter in determining the scope of limitations given technological advances. And we can make those arguments without appealing to anything any Framer said anywhere.Report
Trying to follow your logic, Still, I guess I just don’t understand why we would ever privilege, or attempt to follow, any rulebook in any game we play; since time moves only in one direction, technology and circumstances will always have advanced from the time the rules were written. Should we then deprecate the rulebook or make little attempt to understand its intent?
Certainly, the game’s rules can and should be changed to adapt to current circumstances; but (somewhat) privileging the original wording/intent to the best of our understanding makes for a more orderly and “fair” series of games, no? How would we ever get through even a single game of football, those things are LONG?
(If anybody says anything about activist refs, I am OUTTA here.) 🙂Report
Ronald Dworkin once said:
If we are to be morally and ethically responsible, there can be no turning back once we find, as we have found, that some of the most basic presuppositions of these values are mistaken. Playing God is indeed playing with fire. But that is what we mortals have done since Prometheus, the patron saint of dangerous discoveries. We play with fire and take the consequences, because the alternative is cowardice in the face of the unknown.Report
Well, sure. Sometimes we need to be Captain Kirk and take a leak all over the Prime Directive, because it’s right to do so.
But sometimes we need to be Captain Picard, and follow it, even when it’s hard.
Though I much prefer Kirk in fiction/dramatically, I suspect Picard’s approach is better suited to a modern democracy.
NERD OUTReport
Should we then deprecate the rulebook or make little attempt to understand its intent?
Only at the level of politics. The rule is the rule. If it leads to suboptimal outcomes, then the intent doesn’t matter you just change the rule.
If the argument is over how to extend an existing rule to new situations, then intent might matter, but only insofar as the principle underlying the intent is clear and unambiguous (well, that’s sorta idealized…). But that principle and its justification ought to be fully general and objectively justified. People living in 2013 are completely capable of determining what that principle is and whether or not it’s objectively justified. So no special authority can be conveyed on a specific Framer’s interpretation as revealed through an analysis of his intent. His words might be elucidatory, but only because they clearly express what we already think is the proper interpretation. One that can be independently provided.Report
Hmm. I think this is fair and I think I mostly agree with it (though I think that it risks calling into question the whole idea or tradition of “legal precedent”, which, for all its flaws and foibles, is long-established and fairly useful.)
But as is often the case, I am not 100% sure. If we ever meet in person I’ll buy you a beer and see if we can figure out why two intelligent and articulate people often seem to approach these questions so differently and sometimes end up talking past each other; there seems to be some fundamental difference in the way we separate, then rank or link, a given question’s elements/concepts, or something. I see the distinction you are drawing between law/politics and will chew on it.
Were you trained in formal logic? I sucked at it, frankly. Too much like math.Report
I think it’d take more than one beer, eh? We see things pretty differently. It goes back to starting points, I’d guess, and I’m not sure I could clearly articulate my own until sometime after the third drink.Report
So we’d either end up in a fistfight, or a singalong; and, either way, in the drunk tank for the night.
I’m in if you are. 🙂
I’m just more curious I guess as to how that happens (nature? nurture?). There are plenty of people on the other side of any given debate where, even if I don’t agree with their premises or conclusions, I can see how they got to them and how they are being used and understand why they end up where they do. But oftentimes you lose me and I just don’t get it (to be fair, I’m often on Jaybird’s side, and he sometimes loses me too).
It seems more than just communication style, it seems more fundamental than that. Is that a two-way street? Or do I just simply appear flat-out wrong to you? I can live with that.Report
I think there’s something fundamental to our disagreements but I would attribute most of your confusion to my writing style. I’m a very lazy writer and because of that I often overly compress arguments or use linguistic tricks for emphasis instead of just doing the work to say things more clearly. Alsotoo and in conjunction, often in comments I’m trying to make a subtle or very narrow point and, given my love of compression, the entire comment could appear confused and besides the point. Which I’m sure most of the actually are.Report
So we’d either end up in a fistfight, or a singalong; and, either way, in the drunk tank for the night.
I think we’ve found our itinerary for LeagueFest 2013.Report
His words might be elucidatory, but only because they clearly express what we already think is the proper interpretation.
I’m tempted to link to this, but I know a lot of people don’t like him, so…
Oops, I guess I just linked it.
Anyway, one doesn’t need to go to oft-derided French dudes to know that meaning not only changes over time (or that this is precisely what makes language possible), but that the context in which we read and interpret it changes. Since the words and the context just are what we have when we try to figure out what something means, trying to discern not just the literal, in context meaning of a text, but it’s more abstract meaning as it relates to us in this moment, particularly when that text is outside the light of living memory, is something well beyond problematic.Report
Poor Derrida, looking at language like a pig looking at a wristwatch. There’s a far simpler way of summing up the problem, from Alice in Wonderland:
`My name is Alice, but — ‘
`It’s a stupid name enough!’ Humpty Dumpty interrupted impatiently. `What does it mean?’
`must a name mean something?’ Alice asked doubtfully.
`Of course it must,’ Humpty Dumpty said with a sort laugh: `my name means the shape I am — and a good handsome shape it is, too. With a name like your, you might be any shape, almost.’
It doesn’t matter what people say. What matters is what the audience hears. So what does well-regulated militia mean these days? The mere utterance of that phrase will rouse up a host of interlocutors to give us Humpty Dumpty’s definition of Glory
`I don’t know what you mean by “glory,”‘ Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘
There. Derrida in plain English.Report
It does, but the thing is that the people who wrote the ECPA didn’t just straight own up to junking the principle of free speech (or security of people in their persons, homes, papers, etc.), nor did the judges who made contrary decisions before the 2005 one that covered a lot of email. They absolutely maintained, and I think believed, that they were applying the principle. That’s why my point that the principle of just applying the principle simply doesn’t settle the issue. We’re just straight-up left with choices that the Constitution itself doesn’t settle.Report
This is, I think, an issue of what’s our default on ‘privacy?’
And because the constitution didn’t create a right to privacy, we’re stuck in muck.Report
Without getting into whether the Constitution creates rights or protects rights that are prior to the Constitution, I’d point to the 9th.
The 9th comes out and says that there are other rights and that the Constitution doesn’t mention all of the rights that are out there and the fact that the Constitution does *NOT* mention a right should not be used as a basis for saying that the right doesn’t exist.
That is, the Constitution has an Amendment forbidding the argument “I don’t see your right to (whatever) in the Constitution.”Report
But I never really seem to see this argument applied to a specific issue or Constitutional question
The framers didn’t even have percussion-cap rifles. Multi-shot guns were unknown to them and weren’t developed until much later.
The idea of someone walking into a public place and pumping off XX rounds per minute into the crowds was not something they could imagine. Had you asked one, he’d have commented on the impossibility of it.
Their idea of the militia, as well as the right to “bear arms”, never considered that.Report
Fair point, I forgot this one.Report
There’s also a very fair argument to make that many of their ideas of what does and doesn’t constitute “interstate commerce” and allowing tiny localities to make their own laws regarding many things has to come to a change in an age where I can get in my car and pass through 50 or more jurisdictions by lunchtime, each with its own rules and laws on such simple things as making a right turn at a red light or passing another vehicle.
Let’s face it, their idea of “federalism” and the “local control” ideas that some conservatives still hold to today were from a time when 99.9% of people never went 3 miles from the house they were born in.Report
And their ideas about free speech came from a time when there weren’t Muslim terrorists making youtube videos.
Their ideas about search and seizure came from a time when there wasn’t meth.
Their ideas about self-incrimination came from a time when there wasn’t videotape.
How good are your brakes, do you think?Report
And their ideas about free speech came from a time when there weren’t Muslim terrorists making youtube videos.
Or Klansmen and Aryan Brotherhood members making calls for “lone wolf” operations.
Their ideas about search and seizure came from a time when there wasn’t meth.
And? A search warrant is so hard to get?
Their ideas about self-incrimination came from a time when there wasn’t videotape.
We still can’t put you on the stand and force you to testify under oath.
How good are your brakes, do you think?
Far better than the points you think you’re making.Report
I dunno about that.
The first point wasn’t rebutted as much as, it seems, agreed with. (There goes the first Amendment.)
The second point doesn’t really address such things as forfeiture. (And why should it? That’s not SEIZURE seizure… There goes the fifth.)
As for putting people on the stand and forcing them to testify under oath, you should look into what videotaped confessions (usually after marathon interrogations) end up doing to a defendant and research into the false confessions that are out there.
There are a lot of shortcuts made in defense of the greater good that I wouldn’t want my enemies using against me. The fact that there are folks who salivate to use them against our enemies scares the crap out of me.Report
How would you avoid using this argument with regards to Jose Padilla’s alleged dirty bomb?
Because, surely, the fathers could not have foreseen a bomb that could not only kill dozens of people, but make an area unlivable.
They still believed in the humors, for Pete’s sake.Report
What do you mean? Are you arguing they wouldn’t ban dirty bombs?Report
No. I’m arguing that they wouldn’t hesitate to arrest and detain a guy for years without charging him.Report
Interesting. I’d argue the exact opposite. In fact, I just did.Report
Why wouldn’t I be able to wave it away by pointing out that the soldiers only had muskets and say “they couldn’t comprehend something on the scale of 9/11”?Report
They knew about artillery. Many of them had served in the military and seen firsthand what artillery could do to buildings.
They knew about how to use fire hulks to disrupt naval formations and harbors. Within ten years of the Revolution, Stephen Decatur used fire hulks against the Barbary Pirates.
They knew about gunpowder bombs. It had been more than six generations since Guy Fawkes had got himself caught trying to blow up Parliament.
And they knew about people using civilians as targets to terrorize the population as a whole. E.g., the Cherry Valley Massacre.
So the dirty bomb? 9/11? Sure, that’s stuff they’d not have thought of. But atrocities, terrible weapons aimed at civilians, people accused of awful crimes? They were hip to that.Report
Did they allow private citizens to own artillery?Report
Yes, private citizens could own artillery/cannon/etc. See Letters of Marque (sp?).
Technically, you still can. I think the only limitation is that explosive shells are tightly controlled & you have to know how to handle & store them. But I know lots of people who own hand-made mortars & cannon & fire them for fun (they are just shooting shot, not shells).Report
I think Mad Rocket Scientist lands the score here — a “privateer” is, by definition, a private citizen who outfits an armed naval vessel. The question is whether you needed a letter of marque to buy the cannons in the first place, and I believe that not to have been the case although I must admit I have no text or other reference at the ready to back that up — nor any text or other reference suggesting the contrary. But we do know that there were privateers who operated out of the United States with Congressional letters of marque through at least the 1820’s.Report
Burt- They really could not have imagined industrial, mechanical war. I say that with confidence since the soldiers and leaders who marched off to WW1 couldn’t imagine it,and that was the time they lived in. Hell Civil War generals had difficulty figuring out lines of soldiers walking across a field wasn’t a great idea when the other guys had guns with rifled barrels.Report
Okay, greg, the technology of warfare has indeed advanced to levels which a late eighteenth-century warrior would find morbidly miraculous, but so what? I don’t understand how that gets us to “we ought to all sort of mutually agree to ignore the Constitution when it gets in the way of achieving some other thing that we all more or less like.”Report
I wasn’t arguing to ignore the constitution (well at least in that comment. nanny state dystopia doesn’t create itself doncha know). I was just pointing out that the founders could not have understood where the nature of war would go. To quote Star Trek, “the past is another country.” In terms of warfare they wouldn’t’ have been able to grasp ww1. Now that could lead to other things they couldn’t grasp, but i didn’t say that.Report
Actually, that’s an interesting point. Private citizens could own cannon, if they could afford them, but they weren’t permitted to use them except in immediate self-defense; they could not, e.g., decide that the Barbary Pirates were an imminent threat to the security of civilization and go bombard Tripoli. The Constitution specifically declared permission to conduct military action against citizens of another sovereign state could only be issued by Congress.Report
“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
More information.
You’re getting into murky legal waters and the Founders put that in for a reason.Report
They might never have imagined Jose Padilla’s dirty bomb. Well, in his worst nightmares, Jefferson might have imagined something like it. But I don’t know and would have to speculate as to whether they would have wanted people to have had access to weapons such as these, or weapons like the AR-15 or the AK-47.
Now, one hint about that is that they wanted to ensure that the government did not deprive someone of their liberty without due process of law. Which tends to mean that you have the hearing first, before the liberty is taken away, and the government bears the burden in the hearing. But another hint is found in the idea that every man could be required to serve in the militia and bring their own weapons when thus summoned.
But I do know some other things and I don’t have to speculate about them. They could easily have, and actually did, imagine someone in the nation being accused of a crime implicating the public safety, and what to do about such a person. They would have wanted that person to have been promptly charged with a specific crime, given access to a lawyer, afforded a reasonable opportunity for a reasonable bail, given a prompt trial in a fair and just location and before an impartial court, and to be set at his liberty if the government failed to prove the charges against him beyond a reasonable doubt. Rather like the kind of process that was given to some British soldiers who had been stationed in Massachusetts on a day a tense situation got out of control in the last days before the revolution erupted, rather like the kind of process that was not afforded to colonists at the hands of the Crown in numerous other situations where public safety and even treason were the accusations.Report
““The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.””
It’s not an absolute, Mr. Likko.Report
I agree with this, as far as it goes. But I’m not even on habeas corpus yet; I’m not even past the Due Process clause. Was Padilla engaged in an act of “rebellion or invasion”? How would charging him, giving him a trial, allowing him access to a lawyer, etc. tolerably endanger the public Safety”? No one has ever satisfactorily answered those questions for me other than with vague references to some sort of fear I’m supposed to feel, which fear apparently justifies doing all sorts of violence to due process.Report
It seems to me that a skilled rhetorician be able to paint this tense situation as one that was well within spec of stuff that the founders could have foreseen. Hell, one might even say that the “laws of war” were more or less being followed.
While I can certainly appreciate the argument that, hey, the founders put these rules out there for a reason and, seriously, they knew that not following these rules would do a lot more damage to their culture and the dream of their country than any enemy could even imagine doing…
But my own starting position is not one that argues that we should be able to ignore what the Constitution says (rather than, say, amending it) because the fathers couldn’t possibly have foreseen something.Report
Then I’ve misunderstood your starting position.Report
My starting position is this: If we want to change the constitution, we should change the constitution rather than by interpreting it away.
We *HAVE* a mechanism to change it, after all.
Isn’t it better to change it than to say that the First Amendment does not protect the right of the people to see a politically charged movie or the 4th Amendment allows for asset forfeiture without charges filed or, for that matter, that Interstate Commerce includes stuff that isn’t interstate and doesn’t involve commerce?Report
Jaybird’s argument is that “the Founders could not possibly have forseen (thing)” is not always a prima facie unreasonable position.
Because there are lots of things that the Founders could not possibly have forseen. Like, say, an agricultural system so complex and nation-spanning that a man growing wheat on his own farm to feed his own animals was engaging in an act of interstate commerce.Report
But human nature isn’t really any different now than it was in 1787.
Agreed. Human nature hasn’t changed all that much in 230 years. What has changed is people’s understanding of human nature and in particular, people’s understanding of how institutions ought to be structured in light of those changing perceptions. I think that’s were the “progress” argument comes in, myself. Not so much at the level of technological progress but social progress. The tension between a narrow conception of intrinsic natural properties and a more expansive conception of those properties revealed by complex social interactions is what defines, to a significant degree it seems to me, the contemporary conservative/liberal divide.Report
The “nature” of a person raised in a 21st century technological, capitalist economy with at least a fascimile of gender and racial equality is leagues different from that of a statesman in 1776.Report
How so? Do people in contemporary society not crave power, fame, and wealth for themselves? Do we not mistrust others who have power when we lack it? Did our Founders enjoy good food and sex and music and other sensual pleasures less than we do now? Do we not form together into factions to advance common interests and preferences? Are we contemporaries more, less, or roughly similarly stratified by economic class with respect to access to the levers of politics, access to education, access to economic opportunities, and so on? Has the Internet made us more or less susceptible to inflammatory libels and baseless screeds than were the people of the Framers’ age?
I don’t wish to disparage the progress we’ve made with regards to racial and gender equality. We can and should be proud of how far we’ve come in that respect. But what we’ve done — as relevant here — is to expand the notion of what kinds of humans we consider “people” for purposes of who gets to do what within our res publica. What those people do, and why, looks pretty much the same to me a quarter of a millenium ago as it does today.Report
A certain moment stood out to me, gonna bold it within a larger passage that I think really gets to the heart of the discussion these two had (and thanks for the link, James, this is a great podcast!)
I was very surprised at two things in this. I was very surprised that Seidman didn’t directly answer Roberts’ question about whether the solution to sugar quotas in Seidman’s world ought to be that those who think they have the right answer on the question ought to have to persuade the body politic to enact it. This seems like exactly what Siedman is explicitly arguing for, and indeed has as strong case to make even to Roberts on his own policy preference, because the fact is that according to Roberts, the Constitution dictates that current sugar subsidy policy is unconstitutional, and yet it is in place. I don’t see (though I’m sure it exists, though he does state flatly that he’s sure he’s going to lose on the question) where Roberts’ program for reforming interpretation and application to get the result he wants via constitutional enforcement is. Seidman seem to be offering him a way to get his preferred policy in place, and perhaps eventually even restore the constitutional consecration for it he believes is in the document but now unenforced: persuade the body politic to of the reason not to want current policy on the merits. So what surprised me is that rather than sort of swallowing the point, when asked “Is this what you want; that advocates have to persuade on the merits of each policy question rather than having certain policies ruled off the table by superior law?”, that Seidman didn’t respond with a hearty ‘Yes!’ or at least, ‘In many cases, yes!’ I mean, that is what he says multiple times during the interview.
But then that also raises the second thing that surprised me, which was the relative ease with which Roberts lets Seidman get off through his choice of example. For someone of Seidman’s perspective, with the example on the table being agricultural policy, it seems like it would be relatively easy to say, ‘yes, for better or worse, if only because in practice this appears to be what we do anyway, I think the formal and informal practices of collective decisionmaking that determine the policy anyway should determine the policy under some kind of arrangement formally acknowledging conventional practice.’ But that’s sugar policy. It’s important, but it’s not exactly habeas corpus. What would he say on some of the more basic limitations on government prerogative over personal autonomy? He’d probably say that practice has vindicated them, but that is starting to be less true, and in any case, there’s still the question of whether there’s any principle on which he’s choosing which provisions should still restrict practice as it wants to evolve overs (if indeed he thinks any should). Roberts got to this in the abstract pretty well, but he never put any hard cases to Seidman to try to see whether Seidman himself is just picking and choosing what he likes from the charter.
In any case, I agree with James that it’s worth your time. I think a number of Seidman’s points are quite compelling, as, it seems, does the interviewer who holds a strongly opposed overall opinion. Ultimately, I think Seidman raises a number of legitimate problems with our form of constitutionalism, but it’s not at all clear what he’s proposing to formally replace it with, or whether whatever he has in mind would be much better.Report
I don’t know that he’s suggesting that we replace it so much as just be more honest about what we’re really doing. And maybe quit calling each other names for disagreeing about whether such and such is Constitutional and basically using it as a weapon.
And maybe we should get over the idea of the Constitution as a kind of Scripture and the Founders as demi-gods.Report
yeah but having the Founders held up as demi-gods gives us a good national myth. what are we going to replace the worship of Washington, Jefferson, Adams, and Franklin with? Actual thought and discussion?Report
I think the whole issue of commodity subsidies is far beyond what we have as a body of Constitutional law.
Here’s the table of contents for the section on section 1983 actions from the Ninth Circuit, and here’s the main entry.
That should provide a fairly sound background on the Fourth, Fifth, and Eighth.
I think it would be an interesting project to look in depth at the Equal Pay Act instructions and compare them to prospective adjudication under the Equal Rights Amendment.Report
Just in case it’s not clear, the last set of italics in the quoted section was supposed to apply only to the word “that,” that is first italicized. And that “that” was italicized in the original transcript. The rest of the bolding and italics are mine, however.Report
California, with 38 million or so people, gets two U.S. Senators.
North Dakota, with 700,000 or so people, gets two U.S. Senators.
My vote counts 1/54th as much as that of a citizen from North Dakota.
This is tyranny. It’s written into the constitution. Why do we elevate a document that mandates the disenfranchisement of so many people?Report
people in DC don’t get to vote for their representative at allReport
We have the House of Representatives to reflect population. The Senate is an attempt to prevent single states from dominating due to their size.Report
In 1790 there were 780,000 people in Virginia (the most populous state) and 60,000 in Rhode Island (the least).
In 2010 this number was 37,000,000 in California and 563,000 in Wyoming.
Hell the 20 least populous states have a combined population roughly equal to the most populous.
That sort of disparity is a quick way to 1. regional fragmentation and 2. loss of legitimacy.
Either state lines need to be redrawn so populations are more equal, or the Senate needs reform of SOME sort.Report
No, the Senate represents the States, not the people. That is why it was limited to 2. Initially Senators were chosen by the various state governments, not by popular election (see 17th Amendment).
The House is for the people.Report
Of course, if that’s what we really wanted, we’d have senators that are appointedand can be recalled , like Germany. The original conception of the Senate was muddled in that respect. If we’re going to elect people who elect senators, why not just cut our the middle man?Report
I think the general idea was that the Congress would be the representative of the commoners, and the Senate would contain the Politicians’ Politicians. The hot-headed exuberance of the people would be tempered in the more deliberative halls of the Senate by people who knew the way the game was played.
As it is, we’ve capped Congressmembers at 435 making them mini-senators and made Senators into directly elected officials thus turning them into mini-congresspeople. And both are diminished in becoming more like the other.Report
See, one part where I think the Founding Fathers were wrong. You shouldn’t get unequal representation because lines were randomly drawn on a map in one place and not another.
Also, the only thing worse than the current set-up of the Senate was the Senate before the 17th Amendment.Report
There was a lot of debate in how those lines wer ddrawn, actually.Report
I meant ‘random’ in the sense that for the most part, there’s no defining reason such as rivers, mountain ranges, and such why states are where they are. Not the ‘random’ in that lines were literally drawn at random. 🙂Report
Mountain ranges play a role here and there. Initially, the Montana/Idaho border was supposed to be the continental divide. But then politics got involved and part of Idaho became part of Montana. On the others, those were politically determined as well. Usually farmers wanting to be separated from miners. There was an “ideal size” but it was rarely adhered to.
If you haven’t read “How The States Got Their Shapes” I recommend it. Fascinating book. There’s also another one, Lost States, which explores attempts at statehood (some serious, some just goofy) that were never approved.Report
“Either state lines need to be redrawn so populations are more equal, or the Senate needs reform of SOME sort.”
Or, to think really outside the box, we could split the country into three or more countries, making it the whole thing more manageably sized in line with the rest of the current G-7.Report
I think that idea has a lot going for it.Report
+1, I’d be downReport
I’m in. I already have one part of the country that I want to split off, and the reasons why I think it can eventually be done.Report
Which, in practice, allows corporations to dominate, due to their size.
Decisions have Consequences. Often Unexpected.Report
It would only be tyranny if the Senate were the only thing. But it’s one of three. It’s the only place where North Dakota matters. California is not in danger of not mattering.Report
Of course the difference between the population of Virginia and Delaware was only about 10:1 in 1790, as opposed to the 74:1 ration between California and Wyoming. Can we compromise and shift things so the small states only have a 10:1 ration advantage?Report
Can we compromise and shift things so the small states only have a 10:1 ration advantage?
Why should they get to eat ten times as much as the rest of us?!Report
Baby steps, man.Report
Give California and Texas the option to split up and see if they take it. I doubt they would because their populations give them an influential advantage despite the Senate.Report
Is there any disparity so great that you would call if undemocratic and/or unfair? If so, what is it? Would it be acceptable if the government consisted of the House, the President, and all the powers of the current Senate but vested in one person who was appointed for life?Report
No, I don’t think I would go with that arrangement. At least not for the United States. But a lot of this sort of thing is context-specific. In the case of the US, I see us as not just a collection of 300-million people, but also of 50 states. So having a branch of government that looks at states, and not people, is not as outrageously undemocratic to me. Especially since we have another one devoted to population. And the presidency, which I would support being devoted to population, too (as it is, presidents come from large states disproportionately from their share of the nation’s population, which I don’t have a problem with… in part because we have the senate).
If I were drawing a system from scratch, I might actually support more of a sliding scale of senate representation (one to three, depending on population). But the argument underlying that, which says that the most fair system is one in which representation matches population, is not one I am really on board with that as an ideal and so that makes me resistant to changing the structure more generally.Report
I’ve just never understood what makes states so important. They were a relic of colonial times that we extended out into new territory, but there’s no reason to give states any more deference than we give to counties, metropolitan areas, or cities.
This is especially true given that most states don’t even form a coherent community of interest. Seattle has a lot more interests in common with Portland, OR than it does with a conservative rural community in eastern Washington. Chicago has more in common with Gary than with Cairo. There’s certainly a place for different places to have different laws, and I support localism in that regard. But it should be done at the metropolitan level, or the city level; states are essentially arbitrary lines on a map. There’s no reason to separate the two Dakotas while uniting LA and Humboldt county.Report
History has its own logic. Well, perhaps not logic, but power. As we learned from the French Revolution, we need to take care in assuming rationality can readily correct what appears to be history’s irrationality.Report
You can either change gradually over time, or you can bottle up the change until it’s released in a short, sharp burst like France in 1789. I know which one I prefer.Report
True, when there’s actual demand for change. But there’s not actually always such demand.
And the failure of the French Revolution was not in trying to change that for which change was desired but had been bottled up, but in trying to change that for which there was no desire for change.
As much as some intelligent and thoughtful people desire change in the Senate, and on entirely justifiable grounds, it’s quite a leap from there to saying that there’s any general desire for change in the Senate. (Perhaps there is, though; but if so it’s escaped my (admittedly imperfect) attention.)Report
I suspect that’s because the current era of the Senate is still relatively new–it’s well within living memory that you could actually pass something through the Senate with fewer than 60 votes. The current utterly broken Senate didn’t reach full flower until the 2000s. But if it doesn’t change, it will shatter eventually, and probably in an unpleasant manner.Report
Dan, I get you, but that’s not a function of equal representation of the states as much as its internal rules. Give the House the filibuster and a 60% cloture rule (the Republican majority is ~53%), and you’d have the same problems, most likely. And that being the source of frustration, it suggests that just fixing the filibuster problem would eliminate dissatisfaction with the Senate–it suggests that, contra your own concern, equality of states itself isn’t a general public concern.Report
You’re right, I shouldn’t conflate the two.Report
Not that I disagree with you about the current frustration. My small r republican self is rather favorable toward the filibuster, but my pragmatical self recognizes a serious institutional dysfunction as its presently structured.Report
Dan, James beat me to it, but a big part of the problem in the senate is the filibuster. It’s easier to reform that than it is to stage a rebellion.Report
The filibuster, and more to the point, the recent explosion in its use, only adds onto the inherent anti-majoritiarianism and overrepresentation of major landowners that already exists in the Senate. In that sense, I think Dan’s point about a steadily increasing need for reform given the underlying assumptions that the people have about the institution that James points out at 1:24 below, is a good one, even if the public is slow to catch on. James’ point that there isn’t currently a steaming pot of rage in the populace about the situation is a fair one in regards to urgency, but the basic elements of a popular crisis are there; at least one theory is that all that’s needed now is a catalytic event to end the inattentive tolerance that currently characterizes public opinion about the Senate in particular. My bet would be that within twenty-five years, there will be a Democratic House that is ready to take major action on climate change, and a moment when the results become dramatically more visible. If the Senate hasn’t reformed by then and the opposition hasn’t either, I can see that being a moment that forces the issue of misrepresentation and procedure as blocks to effective policymaking in the Senate.Report
Michael,
The procedural issues can be fixed relatively easily. It just requires senate action. The “misrepresentation” issue, on the other hand, is insurmountable minus a revolution of some sort. You have to have the consent of states that simply aren’t going to consent. How do you expect that will be gotten around?
There are only two ways around that. The first is secession or the threat thereof. That’s… problematic. And not terribly likely. And wouldn’t help solve the issue at hand that much because the states left behind could then loosen environmental regulations.
The other is to take over the government by force and keep the other states in check. A literal rebellion/revolution. Sending troops to keep those intransigent North Dakotans in line.
Absent that, majoritarianism. Stop the funding to force the smallpop states in line. Which, if you have that kind of majority, you don’t need to fiddle with the senate anyway. It would require less of a majority to do that than to change the constitution.
Well, beyond that, I guess the judges could declare the Constitution to be unconstitutional.
I’m really having difficulty seeing a French-style revolution here.Report
Will,
Mis-threaded a response to @ 8:05 pm below.Report
Michael,
Neither slavery nor civil rights led to Senate reform. I’m dubious global warming will prove a more effective motivator to overcome the oublic’s reluctance to make major structural reforms–a dramatically greater change in structure than we’ve ever agree to before.Report
What reform are you talking about? There has been Senate reform, and beyond that, the baseline is now different – routine cloture votes is a different status quo than we’ve had at most times in the past. Meanwhile, the sense that more or less proportionally representational democracy is/should be the basis of our system has never been stronger that I am aware of. Obviously, climate change as the catalyst is entirely speculative, but are you saying it’s just wrong to expect Senate reform of any kind in the next 30, 40, 50 years? Or what?Report
Also, there has been Senate reform. Not in the sense of the number of Senators, but in the case of the filibuster.
Cloture used to need to be universal until 1917. Then, it was 67 votes until 1959 when it was changed to 2/3 of those present in response, to the Civil Rights fracas and finally, in 1975, to 60 votes.Report
I would add to this that the existence of states or large subdivisions is not a uniquely American concept. Nor is unequal representation of the citizens among them.Report
And I’m against those set ups too. It’s just the German Bundesrat doesn’t affect the policies I support. The Senate does.Report
No doubt. I wasn’t suggesting inconsistency. Just that our set-up is not unique. As I mentioned to Dan elsewhere, I think that our country is too big to try to govern as a single unit. Fifty is a pretty good number to divide by, though if I were drawing the map I would probably do it differently*, but I do support building blocks and those blocks having different representational significance aside from population.
With Germany, I don’t know precisely what the utility of having those states is. But there’s a lot in Germany’s internal regional history that I don’t know.
* – Off the cuff, combine the Dakotas, Wyoming-Colorado, RI-Connecticut, Delaware-Maryland (maybe ceding Western Maryland to someone else), split Idaho between other states, and so on. On the other side, split California, Texas, and maybe New York.)Report
Power, yes. Logic, only of the self-justifying sort.
Evolution happens in fits and starts, according to Stephen Jay Gould. There also is a gradual component of evolution, a-la Dennett.
There is a sort of compromise between the two positions: consider how tectonic plates move. Some of them shudder along, creating little earthquakes all the time. But sometimes the plates jam up for various reasons, leading to enormous earthquakes. There are benefits to Slippery Slopes in the case of seismic faults. Those who insist on Adherence to Ancient Precepts are only postponing the inevitable.
Evolution is mostly about things that never happen yet we’re completely dependent upon all these little mistakes piling up. Lots of unhappy mistakes happen, ask folks come into contact with genetic diseases. The trick is to keep shuffling the deck, avoid inbreeding, try to stay off little islands where it’s so tempting for the dodo birds to avoid the hard work of flying. That sort of evolutionary laziness has consequences: those hungry sailors thought the dodos were delicious. All our lazy little preconceptions about the world conform to the same problem domain.Report
Will,
Sorry, I was referring to institutional reform, maybe a change to the representation scheme, more likely just filibuster reform. As James and Dan talked, it seemed that’s what the range of imagined outcomes settld back to.Report
Ahhh, okay. I don’t have any problem with filibuster reform (and am at least in agreement with others that the current representation model plus filibuster is problematic).
What do you mean by “a change to the representation scheme”?Report
A constitutional amendment introducing some degree of proportional representation, maybe along the lines of your one-two-three idea (which I like). I don’t regard that as particularly likely, because James is right that it’s not in itself exactly a top-tier public concern. But over time, dysfunctional procedural protections for the minority in a body that already over-represents a minority in the country will start to lose legitimacy in a political environment where problems of any degree of unavoidability, urgency, and distributional impact have to be dealt with, or else real consequences for people will follow. That’s why I raise climate change as the catalyzing factor.Report
A) No, that would not be acceptable.
B) I think our current grudge about disproportionate representation in the Senate is a consequence of the 17th amendment (or perhaps is reflective of the change in understanding that led to the 17th amendment).
With direct election of the senators, senators now represent people, populations, and some represent larger populations than others. The original design, of state legislative selection of senators, meant senators represented states, discrete political units–represented the governments of those states. Because under the Articles of Confederation, the states were each actually independent–Article II: “Each state retains its sovereignty, freedom, and independence…” with each being represented equally in the Congress, as states are today in the UN, and in the European Council.
There is an important conceptual difference between representing political bodies and representing people. Each has its justifications, each has its problems. I like to point out to my students how unfair the Senate is to large states like CA, TX, NY, FL, etc. (including our own state). And then I like to ask them if they think equal representation in the UN is fair–is it right that little Liecthenstein (37,000 people) has an equal voice (outside the Security Council) as the U.S.? And about the time I have them persuaded that only proportional representation is legitimate, I ask them if they really want China and Indian to have three times as much representation in the UN as the U.S. does.Report
I’d be the jerk that says, “yes, in the UN, China and India should have more power than we should.”Report
Let them both chair the committee devoted to the impact of child brothels on Climate Change.Report
Jesse,
I don’t see that as being a jerk, but as a legitimate position. I just think the current structure is also legitimate. So my point in that little exercise is not to lead them toward one or the other, but to get them to think about both approaches and understand that our choice between them does matter, both in theory and effect.
Granted, most of my students are jingoistic enough that they viscerally respond differently than you have, but that just makes them more (knee?) jerky than you.Report
The bigger things is that the US would never consent to it, which is why compromises are necessary. To take another example, would the EU have a popularly elected executive? Getting everyone to agree on that would be… tough. There are limits to how much authority people want to give to other people in different places and cultures just because they latter outnumber the former.Report
That the power of the state governments would also be decreased is probably a consideration as well. That is, being governor of California or Texas is an advantage if you want to run for President. Being governor of Houstonia, not so much.Report
Absolutely, which was what I was driving at. Texas and California benefit from their size, despite the loss of senate representation.Report
Perhaps but certain mayors probably have more power and prestige than governors of some states.
Who gets more media time and has more power? Mayor Bloomberg or the governor of Vermont?
The mayor of any major city (especially if the city is the central nervous system of a particular industry) is going to have more power and prestige than the governor of a small state.Report
Being a big-city mayor can often be a good stepping stone to being governor.Report
The mayor of Houston would actually be better, if such things were considered logical. Unlike the Governor of Texas, he’s actually the chief executive of a polity.
The Governor of Texas is akin to the pre-Cheney Vice Presidency — it’s pretty much entirely a ceremonial position. The power vested in the other 49 state governors lies in the Texas Lt. Governor instead.
For all the comments about Obama’s lack of expertise, George Bush probably had less effective political experience than Obama did, simply because the demands and duties of his office as Governor were so light.
Perry is an interesting aberration, his weighty pull being a factor of his personal control of the state GOP and not his office.Report
Perhaps even better if you’re thinking of playing on the national stage — most people outside of Texas aren’t going to know just how little power the governor there actually wields.Report
Yeah, but we gave Wyoming statehood with a population close to 1:100 of New York. Maybe the idea was that Wyoming’s population was supposed to grow more than it did (and New York’s would stop growing before it did?). History tells us that populations weren’t the only, or even primary, consideration of what should constitute a state and its two senators.
(I would argue that we might should have combined Wyoming with Colorado and the Dakotas together. But such things were never really considered. The Mormons tried to form a huuuuuuuge state, which only would have gotten two senators, but they were denied. It was the preference of many that California and Texas be split up on admission, even though that would have resulted in more senators and less senatorial influence for existing states, but both states recognized the power that came with size and I believe still recognize it and would not split up in exchange for more senators, if given the choice. I know I wouldn’t.)Report
I would argue that we might should have combined Wyoming with Colorado and the Dakotas together. But such things were never really considered.
A considerable amount of grief in the West could have been avoided if the borders had been aligned with the divisions between major watersheds. Some days I think that lawyers must have had a hand in placing Colorado where it is, anticipating the ongoing revenue stream that all of the interstate river compacts would generate.Report
Well yes, there is that. But I don’t think that was ever going to happen. Colorado was in before the Powell map was developed. So I’m thinking smaller changes.Report
Some days I think that lawyers must have had a hand in placing Colorado where it is, anticipating the ongoing revenue stream that all of the interstate river compacts would generate.
Being a Coloradan, my guess is it came from the hand of a higher power.Report
A fair point to make is that had the states been drawn in a way to where all the newer states had closer-to-equal initial populations, unless you had a crazy-looking spiderweb of very, very long states that attached a certain amount of land to a population center of a certain size far away form it, you’d have had some massive, mega-states in land terms out West, and people back East would probably have been bitching for a hundred years about that concentration of all that land wealth for just a few states.
Of course, the solution is to just ditch the Senate’s disproportionate representation scheme.Report
The Mormons tried this (the western mega-state), choosing more land over more senate representation. They were shot down.Report
I think the problem in that case was the “Mormon” part, not the “more land” part. 🙂Report
No, it’s not tyranny. It’s disproportionate, but that’s not the same thing. And people from California can move to North Dakota.Report
That’s the same argument as saying that gay people can be married, just not to the person they love.Report
This is true, to roughly the same extent as when people say we shouldn’t worry about the interests of rural America because they *chose* to live where so few people do. Which, if we disregarded the low-population areas by going completely based on population, is what we would be doing.Report
This also I’ve never understood. Rural people aren’t being completely disregarded, even in a popular vote system (for instance, it’s not as if every Illinois governor comes from Chicago, and gubernatorial candidates campaign all over the state). We have experience with this sort of thing, and it doesn’t support the fear that rural areas will be completely disenfranchised.Report
New Hampshire and Iowa still get attention despite their relatively small size from Presidential candidates is because they’re 50/50 states. The mass of quadrilateral states and smaller Southern states true problem is their not only small, but they’ve swung so much toward one party in the past generation or so and as a result, the Senate where together, they can have 20% voting power despite having about 10% of the population.Report
woah, missed a connecting phrase there. “as a result, the Senate is the only place where together, they can have 20% of the voting power despite having about 10% of the population.”Report
Chicago may not produce all of the governors, but Cook County produces a disproportionate number of them. Beyond which, I don’t think you can really compare a state with thirteen million people and 60k square miles to one with 300+million people and four million square miles. That’s why I think we should break it down into units (50 is a good number, though if starting from scratch I might design them differently) and consider those units independent of how many people occupy them.
The number of presidents we’ve had from lower-population states is outstripped by their actual population (in the recent era, anyway, probably going back further). I can bring up some numbers, but it’s not like lower-population states produce fewer presidents in accordance with their population. Politicians from these states lack a power-base, lack media centers, and so on.
Maybe the natural advantage that spread-out people enjoy with regard to congressional districts would help with representation more generally. I’m not sure. That might be mitigated by the fact that people who support such things also support proportional representation.
It’s also not purely a matter of rural versus urban. Utah may be more urban than Delaware, but Delaware has a very helpful regional advantage. The notion that demographic representation favors large places out of proportion with their population is studied by political scientists. There are various models to try to deal with this. I’ll see if I can find something on that.
Anyhow, I was at least partially considering something like this:
In response to rural postal delivery service (which might or might not take a hit, if we didn’t have a goodly number of senators from places like Maine and Idaho).Report
To refer back to one of our favorite words here at the League, I think there may be an element of privilege in this discussion. Those arguing against federalism seem to mostly be big-state folks, and I suspect there’s an element of unexamined big-state privilege here.Report
Can I argue about cutting cali in two and combining the two dakotas?
Seriously, small steps, but good ones.Report
Hell, California talks about splitting itself in two (or three), and I’m sure if it could ever come to internal agreement on that, Congress would probably accept it. And I’m sure if the Dakotas chose to merge, Congress would accept that.
But there is a difference between the peoples of the relevant states wanting to split/merge and folks from outside forcing them to split/merge.Report
Mike Royko, who I was lucky enough to grow up reading, used to talk about how Illinois was two distinct states and that Chicago should just kick the rest of the state to the curb (the ungrateful bastards). That’d show em, was the argument. I think there’s alot of truth to that.Report
New Illinois would have an admirable crime rate, if nothing else.Report
Until the cutbacks in subsidies kicked in.Report
Would the crime rate in New Illinois be appreciably worse than that if non urban states which is – I think – generally pretty low?Report
I think the thing that would block the separation of California, if they ever got down to considering real details, is the very large payments that North California would start charging South California for some of the water diversions.Report
At what point do we consider desalination? Expensive for the high set areas, but I’d think it workable on the coast.Report
Michael,
Perhaps, but it’s NoCal that would like to get away from SoCal, rather than the other way around. So if the north decided they were really serious about breaking away, they might realize that cheap water for the south was the price of separation.Report
At what point do we consider desalination?
Ultimately, it’s all about energy. I don’t see SoCal with the necessary surpluses for at least the next decade. There’s a non-zero chance that the San Onefre nukes won’t be coming back online. LADWP seems to be committed to being coal-free; between the Navajo plant in Arizona and the Intermountain plant in Utah, there’s another 1.3 GW of capacity that has to be replaced. Phil Anshutz thinks he can build 9 GW of wind farms in Wyoming and sell the output to SoCal, and Blue Castle Holdings thinks they can build 2 GW of nuclear in Utah and sell the output to SoCal; both would require extensive new transmission capacity and are at least a decade away.Report
Is it arguing against federalism just to want to maintain representation as proportional to population? How does that privilege not run the other way – those people currently over-represented in one out of just two federal legislative bodies simply trying to maintain that overrepresentation?Report
Are we going to call people with less collective influence attempting to hold on to what influence they have “privilege”?
I’ve lived in a very largepop state, then I moved to a smallpop state, then back and forth a couple times. The difference in collective influence is palpable. The senate, by my reckoning, acts as a check on that collective influence.
The large states benefit by disproportionately sending their folks to the White House. They have large congressional delegations that have incentives to work together to bring money into the state. They have outsized media influence. These things combine to, without a senate, give them more influence than their portion of the population. Smallerpop states have the senate, and that’s about it. I just don’t consider the desire to hold on to that indicative of having excessive power, even if it’s not in proportion to their population.Report
In short, yes, whatever else is the case, I’d call trying to hang on to over-representation in the Senate a defense of privilege – though I said nothing about excessive power.
Some of your other points are legit (the larger delegations bringing greater benefits back to their states), though in each case i question how much the benefit really accrues at the state level. Media influence, for example, stems directly from population as far as I can tell – perhaps you can explain how state lines a major drivers of that. And it’s no my experience that large states have easier times balancing their budgets. To be perfectly honest, I simply don’t care about whether the president comes from your state or my state (from neither of which one has come nor do I expect on to).
From the perspective of broad effect on national policy, I don’t think any of these things hold a candle the the effect that the overrepresentation of smaller states in the Senate has, with their somewhat idiosyncratic political cultures that nevertheless coordinate in a rather clear way in broad political terms. I just think that it’s a disproportionate way to offset the power differences that stem naturally from differences in state size.
I’m not saying we can actually balance it all out in practice; I agree that this is what has come down historically and the path just may not be there to change it. I am saying it’s a serious deformation to the political structure that offsets roughly disparities that in theory could be accounted for more elegantly and fairly from a national perspective. And I don’t get the impression that if these other ways of adjusting for these power differentials were made available to you, you’d happily give up an arepresentational Senate. Might be mistaken about that.
And above all, I am saying that in light of all of the rest of what you list, or obviously apart from it, defending the Senate’s representational scheme from the perspective of a small state seems to me smack of privilege as much as those in large states pointing out its unfairness. People in large states today didn’t draw the state lines any more than people in small states did.Report
I think (maybe?) a part of our disagreement is whether or not unequal representation is inherently unjust and therefore any beneficiary from that is inherently privileged.
It would seem to me that this would be a stronger argument if the privilege was conferred by oneself onto oneself. The smallpop states didn’t invent this system. It wasn’t invented for the benefit of those who proposed it. Quite the contrary, every time the existing states gave two senators to some barely-populated part of the country, they diluted their own influence.
Instead, what we have are groups of states that were admitted under a certain system – an admittance they had to apply for and be granted – and now are being privileged for wanting to stick with the system they joined that was decided by others (and arguably the resulting population disparity itself is a result of policies driven by others). The only states that were admitted from a position of power were California and Texas, both of which chose to be two of our three largest states and are the two most under-represented in the senate.
Yet it’s those that did not deal from a position of power, that had to accept whatever conditions were placed upon them, that are privileged? That just doesn’t square with me. Not when the system was never designed to be proportional.
(Of course, I am thinking of the western states. The eastern statelets… well, again, that was what everyone agreed one. If that wasn’t okay with the large states at the time, those states could have told Rhode Island that if it wanted to it could go its own way.)Report
Actually, the smallpop states did create this system from the start. In fact, under the New Jersey plan, they wanted a system where we’d only have a single house of Congress with equal representation per state, not population.Report
Hence the last paragraph in parenthesis. Larger states may have wanted something else, but they wanted Rhode Island’s participation more. So it was, then, a mutually agreed upon arrangement.
The western states, on the other hand, were not around yet. [edited due to a brain-fart]Report
My last line should indicate that I agree on the basic point of not blaming people caught in the system. I just want them to be able to recognize what’s going on in it, or in any case identify where fundamental disagreements about that lie.
Which I think I do understand better now. From my perspective the original eastern smallpop states were engaging in a kind of illegitimate obstruction of the obvious logic of union to extract special representation for themselves. Each individual colony was in a position to undermine the unity of the natation as a whole, yet in my view over the long term that position was untenable. Exploiting that was a fundamental distortion to an efficient system. I understand accepting that was a price of the basic path-dependency of history. But that doesn’t consecrate the results as not a distortion that we should regard as a defect.
Then whit that precedent set, the terms on which states whose size and populations represented the amount of power they each added to the union were more or less set. I don’t think it’s a defense of the Senate’s representation scheme any more that California and Texas didn’t demand such a fundamental rearrangement of the established system as proportionality in the Senate as the price for their entry any more than that Rhode Island and Delaware demanded its institution as the price for theirs. These two historical facts are entirely related, and aren’t in any way independent normative ratifications of the Senate’s disproportional representation structure from my perspective
That’s not to say that I don’t acknowledge the basic need to offset small states’ difficult position. My point is just that this is too much, and to systemically fundamental a way to do that.Report
Gah. I keep mis-threading.Report
Michael, the reason I am harping on culpability is that it seems to me that the term “privilege” implies a degree of collective decisions on the part of the collectively privileged. White privilege existing because whites assumed it from a position of unjust influence. From my western state perspective, that’s not right at all. We can say they inherited it from the small eastern states assuming it unjustly, but I don’t think that’s right, either, for a couple of reasons. If I am seeing an implication that isn’tthere , we should drop it.
I think you’re overestimating the leverage small states had at the founding. I don’t think Rhode Island was necessary and I do thinkthis is eexemplified by the fact that what they gotwas not one state one vvote like they would have preferred but a compromise. Perhaps an unjust one in your view but I think that is dependent on the view of proportionate representation as the measure of fairness. I don’t think that’s clear at a any more than the EU is obliged to regard constituent entity population.
I don’t think you and Jesse are being mean spirited here and I don’t think I can say that you are wrong in an objective sense, fairness being a matter of perspective. But I think the the original deal was fair because everyone agrees to it (with no one at gunpoint) and I think the legacy has a similar logic to it: statesare things and nnot just the sum of their populations.
As I’ve said and you’ve acknowledged, I might do things differently if I was drawing a system from scratch, but at least a part of what I would do is predicated on the notion that states should not be represented only on the basis of their populations, which is the logic being rejected by the Senate’s staunchest critics. It’s partially because of that I am less than eager to even compromise because then it becomes a question of why I am willing to accept unequal representation. So… status quo bias, I guess. And the rejection of the notion that unequal representation is ipso facto wrong. Non democratic, yes, but not in a way that is necessarily wrong.Report
And I think you’re insisting on Privilege hacing a lot more elements to it than it does. Indeed,, to me, privilege primarily means exactly that the privilege was not put into place by the privileged, or at least needn’t have been. I think that’s irrelevant. I also think that even fairness is not implicated here. We can differ on whether the initial conditions of the union conferred fairness down the ages on the Senate arrangement, but I don’t regard it as relevant to whether the Senate constitutes a privilege for small states.
Moreover, even if the small states did have the bargaining position to command this deal, it doesn’t follow that it’s not right to say they negotiated a privileged position in the Senate for themselves that’s lasted down the years. Further, I think it;s wrong to say that it ws only a result of leverage. Weren’t there people in the country at alarge that regarded an equal-size delegation from each state as a legitiamte principle to protect the idea of states of equal status? I think there were. But it doesn’t follow that the arrangement that resulted didn’t privilege the inhabitants of those smaller states with respect to t this issue. it’s just that everyone agreed on that. Well, now we’re still discussion whether we all agree on that. I’m not sure I understand what the prior agreements have to do with whether there’s a privilege here.
This is not to say I disagree with James’ initial point that the large states speak from an overall position of privilege. That’s foundational; there just weren’t any equal-size colonies from which to work from the start. On this issue, it seems clear to me which way the privilege runs. I don’t think there should be a problem calling it what it is in both directions.Report
Sorry for all the errors; had to make it to the store.Report
Oh, but I meant to add that I’m not at all attached to labeling any of this privilege. Neither of us injected that stigma into the discussion. This was just all under the notion that, if we’re going to talk about it in terms of privilege, my view is that you have to label the Senate situation privilege as much as you label the basic issue of state size as privilege. After all, we really never had the option of having equal state sizes. The question for is just what we now think of this arrangement for addressing the disparity in power between different states. I have no interest in characterizing it in any particular way, only in saying that this degree of permanent nonproportionality in an entire chamber of the national legislature isn’t a proportional solution to the problem, and isn’t a good arrangement for the country at large, regardless of how history weighs on the fairness of it.Report
It was really something I never fully appreciated until I moved out of the city and out of a largepop state. I think you take the collective influence of “power in numbers” for granted, focusing instead on the fraction of the number that you, individually, are.Report
Do you have experience away from a major center in a “largepop” state that indicates to you what you’ve experience was the benefit of being a largepop state and simply the inherent power of population centers?
Does anyone argue that population centers per se are more or less naturally-occurring power centers, and that from a national representational standpoint, their power should more or less simply be represented as proportionately to their population, and perhaps proportionately to their relative power per se, rather than offset in any way? That cities’ power isn’t in a sense more fundamental than states’? Or do we even fundamentally disagree down past that point? Because if we do, then it renders the state-level discussion pretty much superfluous.Report
*not* simplyReport
Yeah, I think the real influence is population centers, not just the population numbers of a state. For example, looking at the 2010 Census results, does anybody here believe that Indiana is the 15th most powerful state? Or that Nevada is only the 35th most powerful state (even w/out Reid)?
I have a feeling that the “influences” that Will is talking about is felt a lot more in Las Vegas than Indianapolis.Report
No, I haven’t. There was a time, though, when we were looking at Pullman, Washington, and Moscow, Idaho. Right across the state lines from one another. Roughly the same size. Both university towns.
Pullman has the better deal of that arrangement, by far. In my view. Not that eastern Washington would ever admit it because of the internal conflicts. But when we were looking at the two towns, there was no doubt in our minds that if we had the choice, we were going to go with Pullman. (Despite the fact that conceptually, we preferred Idaho.)Report
I appreciate the callback, but I’d argue that representation in the national legislature is not in the same category as postal service.Report
One distinction I would make with regard to states and disenfranchisement is the very large federal land holdings in the western states. If three-quarters of the population of Illinois lived in Chicago, and also owned 40% of the land outside of Chicago, and could make largely independent decisions about how that land would be used even if such uses were detrimental to the well-being of the other landowners downstate, and the Chicago-owned land wasn’t subject to taxation by the downstate cities and counties, well… it would seem reasonable that the residents of Chicago bend over backwards to avoid the appearance of saying, “Fish you, we’re going to do everything based on popular vote.”
The main difference in the two situations is that the US non-western states aren’t as homogeneous (politically) as Chicago. OTOH, Congress voted to make Yucca Mountain the only candidate site for long-term storage of nuclear waste, even though essentially all members from the Western states, Republican and Democrat, voted against. Over the long haul, I anticipate more energy-related things like this.Report
No it’s not. It’s nothing like the same thing. I don’t even know how to respond to that.Report
How is it different, exactly?Report
?The immense difficulty of amending the US Constitution has made it too unwieldy to be useful. There are many issues in which the government has to ignore it to get things done, from the profound (the Emancipation Proclamation) to the mundane (the term lengths of senators for a new state).
Maybe if the populace tarred and feathered members of the gov’t caught “ignoring constitution” or member of the gov’t did, there would be less of it. The only way you prevent scope creep is to come down hard on it.Report
The way you prevent scope creep and all other forms of slippery-slopism is to not want them to happen. To whatever extent we can divine public preferences from the semi-democratic outcomes of our semi-democratic system, it seems that “the populace” isn’t interested in preventing these violations of the Constitution.Report
Part of the problem is a vague innumeracy on the part of the population and a willingness to listen to politicians who say that benefits will be individualized and costs will be socialized.
And all you have to give up is rights that other people use a whole lot more than you do.
It’s fairly easy to get 50%+1 of the people to agree to that.
The degree to which this is seen as a good thing or a bad thing tends to map quite well to the attachment to the rights that other people use a whole lot more.Report
I agree wholeheartedly, but I don’t see the Constitution as a terribly meaningful check on this. I mean, except insofar as the Supreme Court is constituted a certain way in Article III, and successive presidents can alter its partisan balance to create roadblocks or red carpets for their party’s preferred policies.Report
What more can you expect from the 4th Amendment than for it to say what it does?
To get really depressing, count the amendments that we still use, for the most part. I’m counting the 3rd, the 12th, the 13th, the 14th, the 15th, the 16th, oh god, the 16th, the 17th, the 19th, the 22nd, the 23rd, the 24th, the 25th, the 26th, and the 27th.
(I was torn on the whole 18th/21st thing.)
What happened?Report
Didn’t Congress just pass a bill that extended the debt ceiling in exchange for a promise that they’d lose their pay if they don’t pass a budget? I’m pretty sure we’re done with the 27th at this point too.Report
I admit to not caring overly much about the 27th.
Perhaps this is what the people who don’t care overly much about the 4th feel like.Report
We all have ones we care more or less about (I don’t worry about the 2nd much, although that’s more because I think it’s actively bad for liberty). This is why the Constitution doesn’t really do much of anything. A sufficient number of people not caring about an Amendment (like, say, the 4th) renders its existence moot.
The Commerce Clause is probably a much better illustration of how toothless the Constitution is in the face of a public that wants something other than what it says.Report
“Lose” pay is one thing, “not be paid” is something else. If the pay is escrowed while there is no budget passed, then I think we’ve got compliance with the 27th.Report
Only if they get the pay in the end. Which means the trigger is meaningless. They have to be paid.Report
Even if it’s technically out of compliance with the 27th, since it would reduce rather than increase their pay, I think it’s in compliance with the purpose and spirit of the amendment. I mean, did we really finally ratify that moss-ridden amendment because we were worried Congress might vote to cut their own pay?Report
Yes, and for this lack for foresight, they will pay dearly. It’s one of the things I look forward to: Pointing to them in their agony and saying “YOU could have prevented this, but you let yourself be distracted by Chicken Wings and Football. Now you get to watch it all go to hell. Enjoy.”Report
Of course, this scenario leaves you in the middle of this hell too. Remember, we don’t get the government we deserve, we get the government the median voter deserves.Report
I realize that. I’m of the opinion that when it all comes crashing down, it won’t matter anyway. I just get to tell folks that they were the fools not me. It’s not much but it should add to their despair and suffering, somthing they richly deserve.Report
I agree.Report
When we dissect the US Constitution, lots of interesting things come to light. Article V shows two routes to amending the Constitution: including a never-used convention route. When the 17th Amendment was coming to a head, the Senate itself fixed the problem of its own electoral process out of fear of such a convention.
For if an Article V convention was ever assembled, it would do far more than fix a single issue. Article V is the jingly little ring on the end of the grenade pin. The founders left in there for a reason. The Constitution was never Holy Writ: it exists at the pleasure of the several states.Report
I thought that the 21st was the result of a convention… Now I’m going to have to friggin’ read something.Report
Here’s a good startReport
Jaybird, it seems you’re right about the 21st Amendment.Report
Well, now we see what will inspire a Constitutional Convention.
Personally, I think it’s high time we had another. If we’re not going to use half of the Amendments, we should repeal them.
I’d like nothing more than a Constitution that 75% of us agree represents the Constitution that we, as a nation, should use to constrain our Federal, State, and Local governments, and constrain the citizenry (while we’re at it).
It’d be nice to not have various laws be a surprise.Report
Furthermore, the Constitution has become an untidy closet. Look at all the things hanging from the Commerce Clause and the Fourteenth Amendment.
There were problems translating from Hebrew texts into English: the King James version stubs in the word “dragon” for tannim, which we now know to be a jackal or a wolf. But other weird animals such as the tsiyim appear in those texts, for which we have no good translation, even now. The translators, even then, understood dragons didn’t really exist, it just got stuck in the galleys and there you are. The same sorts of problems crop up in the Qu’ran.
So now we’re stuck with SCOTUS and all this specious hagiography surrounding the Founding Fathers and Original Intent and a zillion problematic cases and we’re left with the worthy Brother Likko to help us suss through them.
The longer the Constitution sits around, the more inertia it gathers. As it does so, SCOTUS becomes ever further enmeshed in dubious hermeneutics. That’s why SCOTUS has become so politicised, we all seem to want our own theologians on the translation committee.Report
Awesome comment Blaise.Report
If I may überpedantic, there are actually four routes to amending the Constitution. Amendments may be proposed one of two ways, either by Congress or through a convention. And then ratification may occur one of two ways, either through ratification by state legislatures or by state ratifying conventions.
The 21st was proposed by Congress, as have all other amendments (no convention has ever been called, although various states have at times called for one), but was–alone among all amendments–approved via state ratifying conventions.
None of that touches the substance of Blaise’s comment, though, about the effect of a convention to propose amendments.Report
Thanks for clarifying that. Jaybird caught me out on the 21st Amendment. Government at present time no longer fears another constitutional convention. Were that threat raised again in a meaningful way, the resulting puckers in the anus-es (ani?) of our Congresscritters would be an entirely salubrious development.Report
Government at present time no longer fears another constitutional convention.
Why should they? We’ve reached the point (we established it at the bottom of the page here) that it is not possible to misinterpret the Constitution (apart from the possible exception of numbers).
So we could write an Amendment that said People Have A Right To Not Be Prevented From (whatever) and there is a significant chunk of people who would argue that this Amendment doesn’t talk about (whatever) but all kinds of dairy producers or what have you.
There are people out there who will say that it is *NOT* possible to misinterpret it… which means that it can mean anything which, at the end of the day, means that it means nothing.
Why fear a Constitutional Convention? It’d mean nothing at all.Report
That’s exactly right, Jaybird. Constitutional scholarship has been reduced to theological disputations. The Pirkei Avot begins: Moses received the Torah from Sinai and transmitted it to Joshua; Joshua to the elders; the elders to the prophets; and the prophets handed it down to the men of the Great Assembly. They said three things: Be deliberate in judgment, raise up many disciples, and make a fence around the Torah.
The Talmud became that fence around the Torah and the Pirkei Avot is part of that fence. Talmudic scholarship continues apace, rebbes continue to issue judgements about new things in our times, young scholars are even now huddled in groups in betai midrash, trying to synthesise the vast layers of historical interpretation like so many young geologists working through their Lyell and Hutton.
Constitutional scholarship is similarly constrained. Over on Kowal’s post on Progressives, I said the past provides evidence of how governments fail. We’re trapped inside our own belief structures. JRRTolkien once said “to crooked eyes, truth wears a wry face.” But to a man with crooked eyes, that wryness would be the hallmark of truth.
Government only comes to life if people believe in it. We think we’re holding fast to the True Faith. The problem arises when articles of faith become Dogma, when we tell others what to believe and not believe. The Fence of Traditional Scholarship is not so much a Fence as a Forest, in which it’s possible to lose sight of the bigger picture.
Do not let me hear
Of the wisdom of old men, but rather of their folly,
Their fear of fear and frenzy, their fear of possession,
Of belonging to another, or to others, or to God.
The only wisdom we can hope to acquire
Is the wisdom of humility: humility is endless.Report
Drinking was approved by a bunch of guys at a convention?Report
Actually, by a bunch of guys at a bunch of conventions.Report
The Constitution ought to be considered as what it is — a superior form of law, demanding strong evidence of broad consensus for alteration, imposing limits on the ability of the government to exercise power and structure on the manner in which it does exercise power. If it doesn’t work in a particular instance, we should be willing to consider amending it, but we should not be willing to consider suspending or bypassing it. I’ll leave the question of the constitutionality of the Emancipation Proclamation for another day, but it is defensible. Specific policies ought to be off the table for the Constitution (the one time we tried it, Prohibition, it didn’t work out well at all), but this must of necessity be left to consensus. We ought to hold dear the idea that the Constitution is about “this is what the government can and cannot do, and how it must go about doing it.” From there, it’s politics.
The fundamental mistake here is suggesting that “people” exercise “constitutional fiat” to “shut down a policy idea.” What “people” are these? Legislators? How is it a misuse of the Constitution to point out that a policy idea violates it? I say, Congress and the President ought to consider the Constitution when passing and implementing a law. Respect for the rule of law demands no less. Should they find the Constitution an obstacle to a needful and beneficial policy, then they should either search harder for a way to conform that policy to the Constitution, or propose an amendment to the Constitution because things have changed since it was first written — we’re supposed to change it when something really isn’t working the way it should. Like, say, the Electoral College. This requires understanding why the Constitution does what it does, and a clear-eyed comparison of what objective it attempts to achieve with what is actually happening in reality. This is not always easy but we can indeed do it.
I would say we’re well past the point of “calling into question” the objectivity and apolitical nature of SCOTUS. Most people who pay attention to it assume that there will be a significant degree of politicization in SCOTUS decisions of Constitutional significance, and have done so since the days when John Marshall chaired the institution. With that said, yes, the Court needs to have the ability to demonstrate that its opinions are principled and not merely political. Mostly, it achieves this. IMO, and there are exceptions.
In our hyperpolarized political environment, we’ve paralyzed ourselves from considering serious changes to the Constitution. Things could be better than they are. But we have the consolation of the consensus of what the Constitution means and how it is to be tested periodically having come to rest in a relatively good place, one where the rules work, government is possible, and the various sides of the political issues are willing to accept the results of the process with generally only minimal amounts of grumbling about it.
Where I get uncomfortable is where we demonstrate a passivity in accepting violations of the Constitution. This manifests most prominently in things the security apparatus of the government is doing — warrantless wiretaps, kill lists, torture, indefinite detention without charge or trial. These things are not “suspensions of the Constitution by consensus.” They are outright violations of our highest law. We object to them, properly so, when our attention is called to them. But shame on us as a people for saying “Hey! That’s bad!” to our leaders, and then not following through at the ballot box with a “So knock it off already!” If we need to do these things then let our leaders forthrightly admit that we’re hit the structural limits of the Constitution and propose amendments so that we can do what we need to do to survive. No, the Constitution isn’t a suicide pact, but it isn’t Holy Writ either. We can change it if we really need to, and if we can’t find the political consensus to change it, then we need to obey it because it’s the law and we are a society of laws.
TL/DR: It’s not all as bad as Siedman complains about. We’re legitimate enough. We could be doing a whole lot worse than we are, and what we’re doing is right enough that if we don’t change, we can at least live with things the way they are.Report
“I say, Congress and the President ought to consider the Constitution when passing and implementing a law.”
There are two basic ways that they don’t consider the Constitution. One is to pass a law and say that the Court can sort it out. This seems to be what happened with campaign finance reform. The other is for Congress to pass a law, only to have the president sign it with an interpretive signing statement attached, then leave the Court to sort *that* out. Both of these could be solved with a line-item veto or shorter legislation.Report
I think the problem is that this is all Congress can do.
Let’s use Obamacare. The Democratic majority thought it was constitutional and the Republican minority did not. Let’s suppose for the sake of the hypothetical that both of these were sincere ideological beliefs.
Congress could go back and forth in an endless loop but eventually the only thing to do is pass the law (depending on who is in charge) or not and then let the Supreme Court (if it gets that high) be the final deciders. I would say this dance has been true since the Clinton administration if not sooner. But it was also true during the New Deal and Great Society as well.Report
How do you propose we move beyond a debate about Constitutionality or not that goes beyond party preferences and policy? Especially for the average citizen and Congress?
I.e. can you imagine a Republican saying “I think Obamacare is bad policy but perfectly constitutional” or anyone saying “We think the Patriot Act is good policy but unconstitutional.”
Most Americans seem to have a fondness and sincere belief in the Constitution. This is true all across the political spectrum as far as I can tell. This makes screaming “unconstitutional” too easy in partisan politics for both sides though I think the right-wing does it more. It is one of the easiest forms of red meat to throw to the base.Report
Sure. I do this. The income tax is bad policy, but the Sixteenth Amendment made it constitutional. I don’t like legal restrictions on abortion, but state-level restrictions are constitutional, and Roe v. Wade was nonsense.
Sometimes I feel like the ability to distinguish between things I don’t like and things that are actually forbidden by the constitution is a superpower.Report
I can sign on to this.
The problem is just simply that 1) we don’t do this, and 2) this is largely because, as Seidman’s pro-Constitution interlocutor concedes, the Constitution isn’t actually very good as a statement of “this is what the government can and cannot do, and how it must go about doing it.” It’s far too vague in far too many places to function well at that, especially on the first, “What” question. The result is that, as Seidman says, it makes what might otherwise be basic political disputes into policy into polity-wracking fundamental schisms over the legal and political theory of our republic. This is of course not a necessary deal breaker, and I don’t think Seidman claims it is. I can accept it; you’re all on board; and Seidman has had enough of it. That’s really all that’s going on here. He says he doesn’t seek to convert a lot of his colleagues in legal academia or the broader public to his view (except perhaps for getting them to agree to advance the policy arguments for their positions along with whatever constitutional arguments they want to advance? – obviously, I’m starting to put words in his mouth there); it’s just where he’s arrived at after however many years of thinking about it.Report
Whoops: response to Burt.Report
I can tell you if I had written the Constitution it would have had explanatory notes that were five times as long as the document itself.Report
My problem is with linking all of these substantive limits on national economic policy that it is argued are contained in the document together with the basic constituting clauses creating institutions, and also with such fundamental protections as being safe from being arbitrarily locked away or killed without review. I’m just not sure it’s a good idea to have all those things governed by law that really does have the same degree of superiority, and I think part of Seidman’s point is that, as it has turns out, we don’t, and that we should be really quite cool with that.Report
You mean like the Federalist?Report
I think he means in the text as law.Report
…Maybe not.Report
The article is factually incorrect on the Emancipation proclamation. It provided for freeing the slaves only in areas under the control of the confederacy, not in areas under Union control. (See Lawyer Lincoln for details) Lincoln knew he did not have the power to end slavery in general, but rather as a war measure to weaken the enemy passed the emaciation proclamation. This is why it only applied to areas under Confederate control. The union army in conquering areas also freed slaves, again a war measure. Why did Lincoln push so hard for the 13th amendment, to make the end of slavery a reality even after the south lost, as it is not clear legally if the emancipation proclamation would have been effective after the north ceased to occupy the south.Report
Many of my non-American liberal friends mock our fidelity to Constitution interestingly. I often have to defend it to them.
I would say I am in between but this is possibly because I see the Constitution as a living document and differently than many conservatives or libertarians.
The document does provide a useful framework for the Federal Government. The Amendments are good and necessary and I especially like having them codified instead of up for debate.
However, “that is constitutional” is more tricky. Often it is used as a tool to merely silence and end debate over various policy goals especially progressive/liberal ones like Health Care. Sometimes claiming a law or policy is unconstitutional might or might not be valid, we need to let the courts decide.Report
The bigger problem we face is people who imagine they are defending what they think the constitution says or what they think it should say, instead of what it actually says.
This Onion article is supposed to be parody and yet I know people who think exactly this way. I hear them quite often on the radio as well. It creates the sort of imagery and nonsense thinking that results in the image for the discussion about creationists on Texas’s SBOE having a stranglehold on textbook standards nationwide.
Constitutional scholarship isn’t actually taught in schools any more. When conservatives talk about doing so, they don’t really mean to teach honest constitutional scholarship, they mean they want conservative indoctrination from cherry-picked points of view and distortions and even faked quotes attributed incorrectly to “the founders.”
I’m reminded of a while back in an argument with a Tea Party/Libertarian friend who insisted that his view of unrestricted, anarchist 2nd amendment rights was supported by several quotes from Thomas Jefferson; first I pointed out two of the quotes were fake, then I pointed out that Jefferson himself isn’t one of the framers, he didn’t even participate in the discussion, he was in France at the time.
The friend’s response: “what does it matter where Jefferson was when he wrote the Constitution?”
It makes my head hurt sometimes.Report
I don’t disagree with you here. The genius and sadness of the Onion is that they hit the nail on the head every single time and that they perfectly well know that people really do think that way.Report
“or what they think it should say”
There is a slight danger in ignoring this. That in the next constitution they may actually write it that way.Report
I think Siedman is wrong to say those countries don’t have a constitution. It’s well understood that there is such a thing as an informal/unwritten constitution. I can’t help but wonder if Siedman’s legal training leads to his misunderstanding, since American legal training focuses so extensively on interpretation of the written word. But a broad range of social science disciplines, from anthropology to sociology to political science to economics and, I would presume, psychology, all agree that unwritten rules can be every bit as meaningful as written rules.
A constitution simply “constitutes” the structure of a political system. England, the most famous for having an unwritten constitution, this simply means the traditional structure, the “how we do things here” understanding of their political system. It changes over time, as does ours, but isn’t necessarily any less stable in its fundamentals.
The American colonists seem to have had a change in understanding of the meaning of the term that probably resulted from their familiarity with formal compacts and colonial charters–the institutions that constituted the structure of their colonies were written, so they came to understand such foundational agreements on structure as something that must be written down, in contrast to their traditional national heritage.
Over the years, I’ve come to conclude that either way works–as demonstrated by the evidence Seidman shows (even if he misinterprets England, etc.). What matters is the perspective of the people, and their insistence on fidelity to the understandings. If they do not agree with those understandings anymore, they’ll change, whether through a formal process or an informal one.
Writing it down provides both a benefit and a drawback. The benefit is that we have something fairly definitive to point to when there is disagreement (“fairly” is obviously doing a lot of heavy lifting here). The drawback is that it may result in the constitutional understanding being too brittle, if it is too resistant to change in the face of too much public opposition.
It’s an arguable question whether the U.S. Constitution is really too resistant to change or not. One the one hand, it’s led to us too often doing change in what is technically an illegitimate way–through legislation and convenient interpretation rather than through the Article 5 process, which can, and perhaps has, led to a loss of legitimacy for the document itself. On the other hand, those who complain about the difficulty often give the impression of opposing the concept of requiring any supermajority whatsoever; at the least, they often don’t have public support on the level of any supermajority requirements, even lower ones, and I suspect their real frustration is not so much with the stringency of the requirements as with the persistent existence of a large minority opposition.
And I would encourage all liberals who would like an easier route to amendment to keep in mind that if we had made it much easier, we almost certainly would have both a Balanced Budget and an Anti-Flag Burning amendment by now. As in the story of The Monkey’s Paw, there is a price to be paid for getting your wish.Report
You don’t think he meant “written constitution” where he said that the U.K. doesn’t have a constitution? He seems to be making a fairly straightforward “unwritten/informal constitutionalism” argument to me. Maybe you disagree. I suspect he would disagree with most of the the main points you make here (that the important question is really the relationship between the people and the constitution, whatever it consists of, and that the function of a constitution is to constitute the government, i.e. not necessarily pre-judge or even set limits on points of legitimate political dispute that country will inevitable deal with) not very much at all. (Obviously he’d probably deny your suspicion that it’s just any significant minority protections at all that is really the problem for him, if you meant to include him in that group.)Report
IOW, I doubt he’d deny that the UK has a constitution, it’s just I think it’s the form of constitution he’d prefer we had as well (because it would/might allow for more leeway as to obedience in on political matters day-to-day and year-to-year. I could be wrong that that’s basically his view, and he could be wrong about it if it is, but that was my impression.Report
Michael,
I only know what James K wrote. I didn’t listen to the podcast yet, as you have. So you’re in a better position to know what Seidman really meant than I am, and if you think he was pretty clear about that, then I’ll defer to you. But if he was arguing that lack of a written constitution necessarily means easier change, then I’d still argue he’s uninformed about institutional theory (emphasis on “if”).Report
It’s ambiguous. I just doubt he really thinks that the UK doesn’t have a constitution in the way you mean, though he could.
I don’t know that he’s concerned that change necessarily be easier (though he likely wants that). It’s more that he’s concerned that the argument why X change shouldn’t happen, or happen easily, be refreshed in current, instrumental terms between political actors rather than by appeals to authority or institutional tradition only for its own sake. He seems to think that in a place like the UK, the former os the case more than it is here, but he doesn’t quite make it explicit. And if that’s not the case there, then obviously to the extent he thinks it is, he’s projecting that onto Britain pursuant to his assumptions about their ‘not having a constitution.’ It’s possible your critique is right on, I’m just not sure.Report
Well, institutional tradition is a strong factor, even when the institutions are informal. “But we’ve always done it that way,” or “that’s the English (American) way,” may or may not be good arguments, but they don’t lose their force just because the rule hasn’t been written down. I’m quite possibly being unfair to Siedman, but I think lawyers talk too much about these things, when all too often their education is much too narrow, and they really don’t know what they don’t know.Report
Well yeah that does sound unfair, not that it matters much. I mean, just as much as you, this is a guy who’s spent a career thinking about this stuff. In any field that doesn’t mean there aren’t mistakes left, but maybe should earne a little benefit? I mean yeah, his field is law, but it’s not like he’s really in a different profession from you. He’s a professor. But I’m neither a professor nor a lawyer, so I don’t really know from these things.
Also, the American argument generally isnt that we’ve always done it X way, it;s that “dead guys idea that he wrote down is that we shouldn’t do it X way, and even though now we no do have a tradition of doing it X, you still have to pay mind to that.” I think Seidman is warmer to “we’ve always done it this way” arguments than you understand him to be, so long as there’s still a “and here’s why it’s still good” piece attached. So the question is to what extent that’s the case in the UK vis-a-vis here.Report
…But I myself characterized his objection as being to appeals to institutional tradition, so that;s totally fair for you to say now that I look at the thread again. I was characterizing him too quickly as well. Basically, whether the appeal os to authority, or tradition, or, as I think Burt rightly points out, problematically, law, ultimately his objection is to a situation where arguments get cut off by those appeals before having to get to the ‘and here’s why that still remains a good idea, beyond simply being off the table due to superior law, or declared by a trusted authority to be not what we should do, or just not how we do things.
I’d just say listen is you can spare the time.Report
This is most likely a result of me short-handing his arguments, rather than an actual flaw in his reasoning.Report
Let’s be clear on what “constitutional” and “unconstitutional” mean in the US system. A “constitutional” law is not inconsistent with the Constitution. Not prohibited. And the phrase is silent and neutral as regards the desirability of a given law.
Those same words as used in, say, the UK, seem to refer to congruence and harmony with a set of ideas that may or may not be the subject of consensus.Report
I for one am in favor of requiring all laws to have a mandatory 10-year (or sooner) sunset provision unless passed by a 2/3 majority of House and Senate.Report
I disagree. By saying all laws you include things like:
Social Security, Medicare, Medicaid, the Affordable Health Care Act, VAWA, The Civil Rights Acts of 1964 and 1991, Family Medical and Leave Act, OSHA, The Voting Rights Act, the Fair Housing Act, Clean Water and Air, Fair Labor Act, and many other acts.
I think both of us agree that all the stuff above is very important. Can you imagine the gridlock if Congress needed to reauthorize them every ten years. Plus the damage done to ordinary citizens who benefit from the acts.Report
I always thought the gridlock would be a bug, not a feature, of such a scheme. However, I think the end result would be a cursory vote to renew every law without addressing them individually.Report
the end result would be a cursory vote to renew every law without addressing them individually.
Yup. I like M.A.’s idea in principle, but this would be the result.Report
There are times when sunset provisions are a good idea but history shows that it does often result in a cursory vote to renew the law without address or just push it forward to a mess.
A perpetual sunset provision is a blunt solution to a real problemReport
Sunset solutions especially don’t make sense of laws that are designed to redress long term injuries (like discrimination or environmental protection), protect civil rights, or be long-term benefits like social securityReport
But how many laws right now are on the books and yet meaningless?
For Example.
And a number of these are still technically on the books, too.Report
I think this can be solved with a committee that goes through old laws and votes on their removal.Report
An ounce of prevention is worth a pound of cure.Report
Its fine to get rid of silly old laws. But the thing about those silly old laws is nobody uses or even knows about them. They aren’t having any affect on anything so they aren’t a problem. Remove them, but its not like they are an actual issue.Report
Except, perhaps, in the case of old racist laws, where the mere symbolism is undesirable, even if the laws are completely unenforceable today. But that’s just a qualification, not an criticism.Report
Yup, that makes sense.Report
Except every now and then to a firestorm.
There was an uproar recently about a man who was able to get his rape conviction overturned because of an old law on the California books. The appeals court basically begged the legislature to get rid of the books in their opinion.Report
Can you imagine the gridlock if Congress needed to reauthorize them every ten years.
If the country deemed it important enough, they’d get passed by a 2/3 majority and not be subject to a mandatory sunset discussion.
I suspect many of those programs would. But on the other hand, stupid nonsense like Bush’s tax cuts wouldn’t.Report
Let’s get rid of the filibuster before we do anything like this, mmmkay?Report
Has anyone observed how it’s questionable the extent to which the U.S. Constitution actually has limited the power of the government yet? Or how compared to the articles of confederation it actually expanded central government authority?Report
This.Report
I just read an interesting post at BHL which talked about not only the principles upon which government should be founded, but also the possibility of enacting those principles given the quality of governance. I think the US lacks quality. Which reminds me of George Carlin.Report
Compared to the articles any workable system would have been more centralized because the articles were so decentralized that it wasn’t workable.Report
Which part of the constitution, and are we talking legally or illegally?Report
Exactly. Wickard v. Filburn provides one hell of a good example of a Supreme Court case that came to the wrong conclusion. (And if you don’t like Wickard as example, just pick the one that you *DO* think was wrong. Bush v. Gore! How’s that one? You hate that one, right?)
And you’re stuck with “so then what?”Report
Well yeah “so what?” I favor an amendment to the constitution saying that it should never be interpreted wrongly and that i always approve of how it is interpreted.Report
You just know the living constitutionalists would get that one all wrong a century hence.Report
These are faster times James. i’m sure i can get it wrong for you in a few years instead of waiting a century.Report
With any luck, we can get its original meaning perverted before it’s even ratified!Report
Amendment 34.Report
I have a serious question, Greg:
Is it possible to misinterpret the Constitution? At all?Report
Speaking for myself, other than obvious deliberately misreading things like, “it says a term for a President is four years. Sorry, it is now 20 years,” not really. For example, I don’t agree with people who believe the 2nd amendment means they have an unlimited right to any weapon that fires bullets, but their view isn’t any more or less valid than my view the second amendment is about militias.
Or, to be more controversial. I think the Dred Scott decision was the incorrect one. But, I don’t think they interpreted the Constitution incorrectly. They just did so differently. Unfortunately, the Constitution was written more like a political treatise than a manual. So, there’s some vagueness.Report
One man’s obvious and deliberate misreading is, apparently, another’s earnest scholarship.Report
I think you just described politics in its entirety.Report
I used to think that cynicism was possible.Report
Pssh, what kind of naif would you have to be to think cynicism still existed?Report
Jay-Yes of course. The nub of the problem seems to be telling the difference between two reasonable, logically argued, valid but mutually incompatible views and “holy halibut…you’re just plain nuts.”Report
I guess i’ll add on that if i, or you or anybody, could design their own constitution and put in place they should assume people in the future will “misinterpret” it. How would it be possible to set a country on a course with all sorts of challenges, circumstances, parties and people, and not assume it would take some wrong turns. That seems to me to be….ummmmm…..pretty much self-evident.Report
That seems to me to be….ummmmm…..pretty much self-evident.
Did you not read Jesse’s comment?Report
Yes i read Jesse’s comment. I’m sorry did the fact he posted first make him correct or give him precedence. Are liberals allowed to disagree? Let me check the hive mind about that.Report
Sure they are. But you seem to be arguing against the person you agree with rather than arguing against the person you disagree with.Report
No Jay, you arguing with Jesse and insist i must defend/attack/etc Jesse. Jesse can speak for himself, i can agree or disagree.Report
If you think that I’m insisting anything about your behavior, allow me to suggest that you’re misinterpreting what I’m saying.Report
Jaybird: Jesse is saying that there are competing interpretations of some constitutional provisions that have equal claim to legitimacy. He very clearly did not say it’s impossible to misinterpret the constitution.Report
I must have misinterpreted this exchange:
“Is it possible to misinterpret the Constitution? At all?”
“Speaking for myself, other than obvious deliberately misreading things like, “it says a term for a President is four years. Sorry, it is now 20 years,” not really.”Report
How did you interpret it?Report
Followed immediately by:
“For example, I don’t agree with people who believe the 2nd amendment means they have an unlimited right to any weapon that fires bullets, but their view isn’t any more or less valid than my view the second amendment is about militias.”Report
…And why must that be a misinterpretation?Report
Also too, in the quote you cite Jesse very clearly says that it is possible to misinterpret the Constitution: eg, misinterpreting the length of a Presidential term.Report
Well, it seems to me that it’s one thing to say that 4 means 6 (which would be a stretch even for language theorists) but quite another (and, honestly, what I was asking) to say whether it’s possible for two people to read, say:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
And for one of them to say that this explicitly forbids the banning of political books and for another to say that this actually allows the banning of political books and for them both to be equally valid.
An argument that allows you to conclude both P *AND* ~P is an argument that has some fundamental problems.Report
Argh.Report
For the record, Still, it’s my position that it is not possible to read, for example, the First Amendment and come to the conclusion that both conclusions are equally valid.
Either P is valid.
Or ~P is valid.
If ~P is valid then someone who argues that P is valid is wrong. (Not saying evil, not saying malicious, not saying stupid.)Report
A third possibility is that it does make only P or ~P valid and not possibly both, but that it’s not 100% percent knowable which is the case, and that that statement can be the extent of a person’s position on the question.Report
The Constitution itself as inkblot.Report
Well, you had moved on to particular clauses, so I guess I mean potentially just parts. In any case, you’re not going get far as an interpreter/applier of the law with that view as a general approach, so I don’t think it too much of a serious danger. Was just saying it’s a possible view. Randy Barnett says the meaning runs out before it gets to a lot of potential particular facts.Report
JB, it seems to me you think those sentences are univocal because you’ve already interpreted and resolved certain otherwise ambiguous or vague terms.
So I think (fwiw) both P and ~P are both valid. Are they both sound conclusions? Well, one of them is false, I guess, but the question is how ought the truth value of a constitutional claim be argued given that the dispute is over interpretations of the semantic components of the sentences (not to mention inconsistencies between the principles).
At that point, I don’t know of a determinate method (do you?) since stipulating a certain meaning for a word begs the question. So, given our epistemological limitations regarding interpreting imprecise language (not to mention inconsistencies between the principles) I think both P and ~P can have an equal claim to legitimacy insofar as the interpretations are reasonable.Report
The fact that we can say that there is a right (and, therefore, a wrong) interpretation is really, really important here.
Hell, I’m even content to be the one who is wrong when he says that “‘interstate commerce’ needs to involve more than one state and needs to involve commerce”.
The very idea, however, that it’s not possible to misinterpret the document strikes me as not only fundamentally wrong (with the attendant problems of being fundamentally wrong) but likely to result in unpleasant outcomes for pretty much everybody down the road (with the attendant problems of being unpleasant for everybody).
To bust out the Gibbons: we’ve seen this movie already.Report
The very idea, however, that it’s not possible to misinterpret the document
We’ve already covered that, haven’t we?Report
I think maybe he now means the very idea that there is any clause in the document that it is not possible to misinterpret (or alternatively, that there is any such clause that does not have one and only one correct interpretation)? Just a guess.Report
Jaybird, consider the sentence “All men are created equal”.
Is the meaning of that sentence univocal? Is it possible for people to legitimately disagree about the meaning of that sentence?
To repeat myself, I think you view constitutional provisions as univocal because you’ve already disambiguated the constituent terms.Report
That’s a good guess, MD, since I don’t have a better one.
I think the worry is that if both P and ~P following from distinct interpretations of a provision are legitimate, then any interpretation whatsoever is legitimate. I don’t see that conclusion following, myself. But I also don’t understand the logic behind the worry. There are as a matter of fact competing interpretations of certain constitutional provisions. Jaybird’s argument seems to be: Well, there shouldn’t be!!Report
It’s not that there aren’t ambiguous or vague terms that we have to deal with (“cruel and unusual” providing a very interesting one), it’s that just because there are ambiguous or vague terms that, therefore, we can look at stuff like, oh, Wickard (and if you don’t like Wickard as example, let’s use Citizens United! You hate Citizens, right?) and say “That Is Wrong.”
And, to bring us back to my original comment, “so then what?”Report
I remember a discussion with TVD where I was basically asking him what the semantics of “decided incorrectly” is, since it seemed to me that by definition anything the SC decides is constitutional is constitutional. I mean, that’s a fundamental part of our system of government, yes?
Of course, the answer to the question is that the SC is adopting interpretations of various constitutional provisions (either directly or via previous relevant rulings) that the person disagrees with. I get that, actually. I’m sympathetic to the argument.
But here’s the thing about it, Jaybird, at least as it appears to me: there is no fact of the matter as to what constitutes the correct interpretation of various important constitutional provisions. The best we can hope for is a legitimate interpretation and then compare specific interpretations on their degree of legitimacy. If two interpretations are equally prima-facie legitimate then we evaluate each one according to other relevant factors. Lots of this will be driven by legal niceties that (frankly) escape me most of the time. Lots of it will be driven by empirical stuff, ideological stuff, pragmatics and of course purely political stuff. So the whole process is messy, to its core.
That Is Wrong.”
And, to bring us back to my original comment, “so then what?”
In my own case I can say that certain specific laws, rulings, institutions are incorrect (unconstitutional). You, on the other hand, might think each of those specific things is constitutional. That’s a disagreement, yes? Is there a fact of the matter that decides the issue? It seems to me that in a non-trivial number of important and interesting cases there isn’t.Report
since it seemed to me that by definition anything the SC decides is constitutional is constitutional. I mean, that’s a fundamental part of our system of government, yes?
This is where I ask you to remember Bush v. Gore. If your response to that was some variant of “good, we got that indeterminate issue cleared up”, I’d have to say that you are the first left of center person I’ve ever met whose response to that case was that the supreme court *CANNOT*, by definition, do something unconstitutional.
That was usually the position of the people defending the case.
there is no fact of the matter as to what constitutes the correct interpretation of various important constitutional provisions
It seems to me that that is true, it’s certainly secondary to the non-zero (and, to my mind, significant) number of situations where the various important constitutional provisions were interpreted incorrectly, then made into precedent and compounding the offense.
Is there a fact of the matter that decides the issue? It seems to me that in a non-trivial number of important and interesting cases there isn’t.
There are a number of cases out there where the court is deciding little more than, say, which side of the road we drive on. It doesn’t matter *WHICH* side of the road we drive on, after all, it just matters that everybody agrees which side of the road we’re going to be driving on and that we pick one and stick to it.
The problem that I see is that there are some pretty absolute statements made in the Constitution and the differences are over whether this case is one of the cases that everybody agrees is an exception to the pretty absolute statement made and to what extent we need to umbrella this under the other exceptions, whether we should make a new exception, or whether we can’t get away with doing that.Report
Maybe the question you wanted to ask was, is it possible to misapply the Constitution, or incorrectly (according to the Constitution) fail to apply it where it should apply?Report
MD, that’s only a necessary question if we agree that it’s possible to interpret incorrectly.
If there aren’t any misinterpretations, there aren’t any misapplications.Report
I’m not sure about that. It would depend on what you think would constitute a misapplication. Barnett says the constitution only goes so far in meaning. Therefore, interpretation of that mneaning only goes so far. Thereafter, judges have to “construct”
meaning to reach many facts – in order to apply it to them at all. It seems to me it would be possible to interpret the Constitution (arguably) correctly up to the point where its meaning stops, whereupon thereafter you could perform a misapplication by constructing meaning that is defective in such a way that wasn’t dependent on having misinterpreted it. In other words, there could be another reason why it’s wrong to have done that application apart from having gotten wrong what the Constitution actually says. (It’s also possible for it to be wrong because it is not consistent with the Constitution, but it could be wrong for another reason.)Report
Jaybird: man I’m flying low over wild terrain in this thread. But what the hell, I’m already deep into unknown territory. Also, we’re sorta agoing round and round on this topic so I think this’ll be my last post unless something new comes up. Given all that…
Formally, the SC determines the constitutionality of various laws, institutions and practices. Substantively, Justices offer arguments based on interpretations of precedent and the constitution itself. SC rulings can be formally unconstitutional if, for example, the courts failed to follow correct procedures in arriving at a decision. But if the correct process has been followed, there is no way an SC ruling can be unconstitutional since by definition SC rulings determine the constitutionality of the various laws or practices in question. So it seems to me that, in general, saying an SC ruling is unconstitutional is incoherent. I think it’s correct to say of a specific ruling that it’s constitutional but incorrectly decided: formally it’s constitutional but substantively it’s inconsistent with (a specific interpretation of) constitutional principles.
It seems to me that that is true, it’s certainly secondary to the non-zero (and, to my mind, significant) number of situations where the various important constitutional provisions were interpreted incorrectly, then made into precedent and compounding the offense.
You seem to be saying that there are two types of constitutional provisions: a) those that obviously admit various legitimate interpretations since there is no fact of the matter to determine which one is correct and b) those which obviously don’t admit interpretation since there is a fact of the matter as to what constitutes that provision’s correct meaning and application.
Is interstate commerce one you have in mind in category b? The provision accords Congress the power “To regulate Commerce … among the several States.” That’s a pretty broad power, as stated, yes? Depending on the semantics of “regulate” and “commerce” and “among” and “several”, it could presumably justify lots of types of activities that you might object to given a narrower interpretation of it. But what decides which interpretation is the correct one? Not the constitution itself, it seems to me, since there’s no fact of the matter which can be read off the text that could decide it.
{{And then the conversation moves to arguments over original intent and so on.}}Report
…But for the most part, I agree a misapplication means a misinterpretation is in play. Didn’t mean to say it doesn’t mostly, just meant to say that when you got down to what you really wanted to insist on, it was that there were certain facts – a book, a law about a book – to which you thought the Constitution had to have a P or ~P application, not that the Constitution means X in the abstract rather than anything other than X. That’s what you said or at least emphasized, so that’s why I asked that question.Report
If there aren’t any misinterpretations, there aren’t any misapplications.
Well, once again, this is a view that no one is arguing so I don’t know why you’re arguing against it.Report
Guys –
Check out this link I found researching based on points Dave made in that other (awesome) exchange:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021318Report
Well, once again, this is a view that no one is arguing so I don’t know why you’re arguing against it.
We’ve seen at least one person say that the constitution (other than getting numbers wrong) can’t really be misinterpreted *AND* we’ve seen the argument that the Supreme Court, by definition, cannot do something Unconstitutional.
The arguments *ARE* out there.Report
If there aren’t any misinterpretations, there aren’t any misapplications.
Well, once again, this is a view that no one is arguing so I don’t know why you’re arguing against it.
{raises hand}
“In theory, possibly?” See link.Report
I don’t think those two arguments necessarily imply other than that if there aren’t any misinterpretations, there aren’t any misapplications.
But my one specifically saying maybe it’s possible in theory does.Report
Is interstate commerce one you have in mind in category b? The provision accords Congress the power “To regulate Commerce … among the several States.” That’s a pretty broad power, as stated, yes? Depending on the semantics of “regulate” and “commerce” and “among” and “several”, it could presumably justify lots of types of activities that you might object to given a narrower interpretation of it. But what decides which interpretation is the correct one? Not the constitution itself, it seems to me, since there’s no fact of the matter which can be read off the text that could decide it.
Well, one thing we could do is to read the whole thing. Would reading the 10th Amendment change how we might read that clause?
I mean, if we ask the question “what is *NOT* interstate commerce?” and come up with the answer “there is not anything that is not interstate commerce”, does that raise *ANY* red flags?Report
Jaybird, I really don’t know what you’re arguing any more. Again, we’re in this really weird dynamic where I’m just describing something and you’re arguing something normative. So help me out: what are you arguing in this thread?Report
Michael, no one is arguing that any interpretation is just as valid as any other. If I interpret the term “the president” to refer to “Stillwater”, then that’s not a valid interpretation. What’s interesting is that Jaybird conceded that there are certain provisions which admit different equally legitimate interpretations given that there’s no fact of the matter to decide the issue.
As I said, I don’t know what he’s arguing at this point.Report
Well, you ask “But what decides which interpretation is the correct one? Not the constitution itself, it seems to me, since there’s no fact of the matter which can be read off the text that could decide it.”
It seems to me that *IF* we agree that it is possible to say “nope, that interpretation is incorrect” (even if in theory) and *IF* we encounter a clause or phrase that confuses us, *THEN* we should look at the rest of the Constitution and see if the rest of the Constitution can clear us up.
To use the example of interstate commerce, if we cannot come up with any examples of anything, anything at all, that is not “interstate commerce”, we’ve entered a region where we can, in fact, say “nope, that interpretation is incorrect”.
If, however, you’re describing a situation where we cannot say “nope, that interpretation is incorrect”, then I’m stuck wondering about my question about misinterpretation again and if we do, in fact, agree that misinterpretation is possible.Report
JB-
Just to clarify – in that last statement of the question, you mean whether misinterpretation is in fact possible for every single clause, word, etc. of the Constitution, not just whether, somewhere in the Constitution, there’s a clause that can in fact be misinterpreted. Right?Report
It seems to me that the argument that is currently operative is that if we encounter a clause or phrase in the Constitution that would prevent the government from doing something that it really wants to do, then we can explain that, well, we don’t really know what “commerce” means, let alone “between” and since the politicians really want to do it, therefore they have the power to do it due to the inability of others to meaningfully argue that this interpretation is a misinterpretation.
I find this argument, though operative, specious.Report
…And just to clarify further that’s actually a less illuminating question that it seems as well. For every clause in the Constitution I could say its meaning is “11.” I, at least, am not going to say that is not a misinterpretation of the First Amendment, for example.
So to further clarify, is what you mean to ask really whether we all agree that there is in fact no clause or Section of the Constitution that admits of any more than just one correct interpretation?Report
if we cannot come up with any examples of anything, anything at all, that is not “interstate commerce”, we’ve entered a region where we can, in fact, say “nope, that interpretation is incorrect”.
Incorrect as in “false” or as in “inconsistent with interpretations of other provisions” or as in “leading to outcomes I reject” or as in “incoherent”……
Didn’t I already address your worry upthread when I talked about resolving disputes between two prima facie legitimate interpretations? Other considerations come into play. What I’ve been arguing all this time is that the constitution itself cannot resolve the important and interesting disagreements regarding how to best interpret specific provisions. You’ve been arguing that unovicality is a fact of the matter all thru this thread. Now I’m reading you as agreeing with me that there isn’t univocality, and that other considerations are used to determine a preferred interpretation.
So what’s the disagreement between us exactly?Report
…or only a precisely defined range of interpretations?Report
if we encounter a clause or phrase in the Constitution that would prevent the government from doing something that it really wants to do
This just begs the question of whether it does or not, so your question, it seems to me is built on the premise of the question we are discussing being settled.Report
Just to clarify – in that last statement of the question, you mean whether misinterpretation is in fact possible for every single clause, word, etc. of the Constitution, not just whether, somewhere in the Constitution, there’s a clause that can in fact be misinterpreted. Right?
I’ve said before that I’m pretty sure that there are some clauses that need to be hammered out (and I used “cruel and unusual” as a good example).
I’m less interested in theoretical misinterpretation of, say, the 3rd Amendment or of the part involving the election of the Vice-President at this moment than the parts that I think I can demonstrate active and current misinterpretation right now.
Assuming, of course, the possibility of misinterpretation.Report
Incorrect as in “false” or as in “inconsistent with interpretations of other provisions” or as in “leading to outcomes I reject” or as in “incoherent”……
Incorrect as in “we should use one of the different ones.”Report
It seems to me that the argument that is currently operative is…
Dude, I should’ve known! Jaybird’s magical liberal decoder. That’s a powerful device!Report
If my description of how the government actually works in practice was inaccurate, it seems to me that calling my description inaccurate would be far more devastating than calling it the result of putting something through my liberal decoder.Report
Michael,
This just begs the question of whether it does or not, so your question, it seems to me is built on the premise of the question we are discussing being settled.
Yes, you’re absolutely right. But Jaybird’s got his liberal decoder ring on so he doesn’t realize it.Report
If my description of how the government actually works in practice was inaccurate
Is that what you’ve been talking about all this time? Maybe that’s why I haven’t understood your responses to my comments.Report
(And, I didn’t think I needed to point out, my problems with the government don’t date back to November 2008. This shit is exactly as “liberal” as it is “conservative”.)Report
Well, I hear ya. But that way argue for that view is to do it up front: constitutional principles ought to be interpreted narrowly to achieve the best outcomes. Instead, you chose to argue against the liberal phantom menace.Report
Okay, so you are asking just whether there are some – any – clauses (maybe beyond ones that use specific numbers) that can be misinterpreted. That great, but it means that that question is not necessarily raised every time you find one where someone thinks there is an interpretation that could potentially be not incorrect in addition to one you think is correct. There could be some that can be misinterpreted, and others than can’t be misinterpreted (or not very easily).
I want to be very clear. I am not saying any of that is what I think is the case. I am just trying to get clear what Jaybird is asking.Report
My fundamental question is still “so let’s say we have a misinterpretation (that leads to a misapplication)… so then what?”
From there, we got into the weeds of what a misinterpretation would really consist of and, now, whether that misinterpretation is a criticism of “liberal” policy.
(Is Wickard “liberal”? I always considered it “statist”.)Report
Or – there could be some with very narrow ranges of potentially correct interpretations, and others with much wider ones, let’s say. Since someone could always just say something means “11.”Report
Then what for whom?Report
I feel like I have been, though it was somewhat buried in deeply indented parts of previous threads, and/or subordinate clauses in my above reflection on this interview.
So, like Mark says, this.Report
…But we could draw different prescriptive conclusions from that, no? What does this fact mean to you about American constitutionalism or America’s constitution, and how we should proceed with respect to them re your general goals relating to political power and national policy in this country, b-psycho?
Mark?Report
Then what for whom?
If you’re thinking of distinct groups with different answers for each one, I’d love to read the list.Report
I guess I mean, what are you asking more specifically? “so let’s say we have a misinterpretation (that leads to a misapplication)… so then what?” Then that happened, I guess. I can go further when you tell me what you want to know.Report
That’s my question. “Now what?”
If the answer is “it happened, move on”, then that’s the answer.Report
Uh, nope. That’s not the answer. If it happened, it happened. Maybe you’d like me to have added move on, but I didn’t. What I did instead is ask you to tell me more specifically about what you want to know about what happens then. You can do that or not, it’s up to you.Report
I don’t get the question either. If the ruling (or whatever) leads to generally agreed upon bad outcomes, then you change the ruling (or whatever). If not, then not. If the argument is a principled one, then you believe in advance that the ruling is correct/incorrect so you continue to believe as you did before. Is there more to it than that?Report
How do you change a Supreme Court ruling?Report
First it has to want to change.Report
I mean, Buck v. Bell is still an established precedent for the right of the government to remove ovaries from the stupid.
On one level, this strikes me as absolutely monstrous.
Huh. It looks like the last forcible sterilization happened in 1981. In Oregon, of all places.
Apparently the response to this (obvious and egregious violation of personal sovreignty) was to just ride it out for about 60 years and hope that, eventually, the culture changes and the precedent will be an embarassing one that we have no idea how people could have thought that way, once.Report
The point you are making that if the Supreme Court can make mistakes, then some of the mistakes it’s going to make are likely to be monstrous. And it’s true. And unfortunately the Supreme court can and will make and has made mistakes. What is the point you are making about that?Report
…Sorry: “The point you re making *seems to be*…”
Not sure how those words got eated.Report
Politics, mostly. (I’m taking this as an answer to me above as well.) Marshall your arguments, get the people who agree with you elected so that eventually they’ll put judges who do on the Court which might then change the ruling. But we all knew that. Are you making an implied point by asking knowing that’s the answer, or is an explicit statement of that point forthcoming, or were you just asking to hear it said? If somewhere along the line you got the impression any of us disagreed with all that, I think you got the wrong idea.Report
I get it, Jaybird. You’re pissed off that liberals and conservatives and independents and paleolibertarians and triangulators and the highten-the-contradictionists and academics and the mediaindistrialcompls have fucked things up for you. Really, I do.Report
And soccer moms! How could I have forgotten soccer moms?Report
Those evil, conniving soccer moms…Report
This is tough, but I’m having a hard time seeing how not fair. In the above response I’m not perceiving a point beyond, “The Supreme Court has royally fished up before, and that sucks for people!” And that’s very true.Report
Dude, I’m a heterosexual white male.
Do you think that *I* am the one who is being fucked over? I assure you, I’m in clover.Report
Fair point (if I may speak for SW). Is there a takeaway you want us to be… taking away from these last few comments – i.e. the ones that say that when the SC screws up and hurts people, that sucks? Or just that?Report
It seems to me that we should have a better “and then what?” than the one we have tended to use in the past.Report
What’s the one we’ve tended to use in the past?Report
What are the most egregiously bad decisions you can think of?
Dred Scot: War
Buck v. Bell: 60ish years of sterilization
Wickard: nothing, really
Bowers v. Hardwick: waited 17 years, retried it, got it overturned as bad
I honestly can’t think of a monstrous decision that had awesome fallout. KELO, for example, had a handful of states pass a handful of laws. That is honestly the best example of “what next?” that I can think of and it’s not like there are a whole lot of cases it’s standing next to.Report
Can it involve a big red button we press?Report