Praising the Constitution
I am sure the majority of the discussion surrounding the Unites States recent Supreme Court ruling will be on the topic of same-sex marriage and marriage equality. And while there is a lot of good discussion to be had, I thought I would take the opportunity to bring up another topic that seems often to be glossed over, but is yet very important to the discussion. That is the idea in the USA of praising the United States Constitution and holding it to an often unquestioning level of devotion.
Before I really get going I would like to take a quick moment to say I do support the US Constitution and think it is important to have a very strong document that provides rights for the people and guidelines for government. The entire structure of the government is defined by the Constitution, and some form of constitution or charter is necessary for the establishment of any type of governing body. Also, in the arguments I use as examples I am not in any way saying which side I am on. I am simply using them as examples, and no attempt should be made to infer my political stances from how I treat the arguments themselves.
But now the other way. I often hear in political discussions people, particularly Libertarians, trying to tie their position back to being based on the Constitution. The buck stops there. The Constitution says it, therefore it must be right. End of discussion. To me this often sounds eerily similar to arguing the semantics of a religious text to support your position.
A great example is in the debate over gun control laws. Without espousing one side or the other, I can fairly safely and definitively say the US Constitution does support citizens’ rights to own guns. For many a Libertarian, the discussion ends there. This is not something only Libertarians are guilty of. The other side of the debate often resorts to arguing context and semantics in an attempt to make the Constitution support their side. This clearly is just a case of people trying to win the argument rather than discuss and discover the best solution.
Similarly in the topic of marriage equality, a lot of the discussion has been focused on whether or not the US supreme court ruling was, in fact, constitutional. Extending that further, the topic goes on to “does the Constitution give the federal government the right to demand that the fifty states all allow same-sex marriage?” To me, this is not the true question that needs answering. Or at least, the answer to that question does not determine a certain action or inaction on the part of the federal government. (E.g., if it was decided that it was unconstitutional, that STILL DOESN’T NECESSARILY mean that the federal government shouldn’t do it. I know, shocking.)
The Constitution was written by a bunch of men over two hundred years ago. Fallible, albeit brilliant, men. It isn’t perfect. (It’s damn good, else the country wouldn’t have survived this long.) But it is still just a heuristic for finding the best course of action in what resembles a reasonable amount of time (insert your favorite ‘inefficiency of bureaucracy’ joke here). But heuristics can be wrong. So perhaps we should more often consider the question of whether or not what the Constitution says is actually the right thing. Certainly, departures from the heuristic of the Constitution should be taken with extreme caution and consideration. But we cannot discard the idea and simply argue based on the Constitution.
At the heart of the marriage equality and the supreme court ruling debate are the ideas of freedom, equality, and states’ rights. All three of those are heuristics I use that usually point to what I think are best. I usually support states’ rights, and consider departure from that as negative expected utility. However, there are many times when that consideration is completely blown away by other considerations.
The best example I can think of off the top of my head is slavery. Before the Emancipation Proclamation some states ruled slavery illegal, some legal. The question that tore our nation apart was whether or not the federal government had the right to impose abolition of slavery on all the states. I usually side with states’ rights. But slavery is such an abominable practice that in that case I would have considered the constitutional rights of the federal government a non-issue when weighed against the continuation of slavery in the US for a single more day. If the Constitution had specifically supported the legality of slavery, then that would have shown it was time to burn it and try again.
Any federal proclamation infringes on states’ rights, something I usually side with. And as more and more states were legalizing same-sex marriage it seemed that the states were deciding by themselves to promote marriage equality. The supreme court decision certainly speeds things up, but is it worth the infringement of state rights? To me that is the important question. Not whether or not it is Constitutional, but whether or not it is right. I am not answering that question here, just attempting to point out that the discussion of constitutionality may be the wrong question. And certainly an argument could be made for why states’ rights should not be used as a heuristic at all.
Having a written constitution that’s very hard to change reduces the importance of winning the next election and so makes politics less of a blood sport.
Unlike the US, where politics is very much a blood sport, and only the words of the constitution are hard to change.
U.S. politicians don’t attempt to kill each other, and the U.S. constitution is hard to change which is why the gay marriage decision was a big deal and occurred only after a massive amount of effort by the best cultural influencers the world has ever known. Considering that the winner of the U.S. presidential election gets to be the most powerful person in the world, our election process is remarkably civilized.
IMO what is interesting about this ruling is that AFAIK it doesn’t appeal to any law which hasn’t existed for decades. So, if we accept the premise that the supreme court is only “interpreting” the constitution, it follows that gay marriage should have been legal a long time ago (where I use “should” in the legal rather the normative sense). While some will probably claim it is exactly the case, to me it seems rather clear that the “interpretation” of the constitution is changing with culture and social norms. Now, while I’m sure that in a democratic system cultural transformations should find their way into law, this seems like a weird way for it to happen. Instead of having elected legislators changing the law according to the will of people, appointed judges are reinterpreting existing law. So, while I wholeheartedly endorse the object-level act of allowing homosexual marriage, the meta-level process leading to this act looks questionable. However, I don’t live in the US so maybe something is lacking in my understanding of that system.
Unfortunately, nothing is lacking in your understanding of the system. Supreme Court rulings tend to be exercises in motivated reasoning. (At least the ones that people care about—they make unanimous rulings all the time on less important issues.)
And in fact, a state court in 1993 noted that the prohibition violated the existing notion of equal treatment for the sexes. Now, obviously the fact that it went nowhere at the time (because people chose not to apply it to US federal law) is itself evidence for cultural and social norms shaping judicial behavior. Also, the fact that Justice Kennedy used a slightly different argument for some reason (possibly rhetorical-poetic).
But even if we start counting from the Civil Rights Act of 1964, rather than the 1978 Hawaii State Constitutional Convention, the history of math leads me to think that noticing a logical implication in 1993 was at worst just a little slow.
According to Wikipedia, the basis for the same sex marriage decision was the Fifth Amendment dating back to 1791 rather the Civil Rights Act. But I might be missing something?
EDIT: As hairyfigment correctly pointed out, the right link is Obergefell v. Hodges and the right amendment is the Fourteenth. That’s what comes from shuffling tabs with Wikipedia pages in a drowsy state of mind :)
You’re missing a lot, starting with the fact that you linked a different case from 2013. See Obergefell_v._Hodges.
Now, I think the decision referred directly to the 14th Amendment without mentioning the Civil Rights Act. But the courts reinterpreted the Equal Protection clause of the amendment after people, apparently, used it as a basis for the Civil Rights Act. Interpreting it by its legislative consequences is not completely crazy, since the amendment itself says Congress has the power to enforce it by appropriate legislation. In any case, all this happened long before the recent case.
Follow-up, since this may have been unclear: the idea is that the Court may use actions of Congress as a guide to help decide what “appropriate” means. And in my reading of history, courts implicitly decided that the Equal Protection clause must have supported (in part) the 1964 law, therefore protecting against discrimination by gender must count as appropriate. Certainly the authors of the amendment wrote “persons” when they could have written “men.” Since the 2015 case concerns State laws and not private businesses, saying the State needs to give a compelling reason to restrict you from marrying a given person because of your gender seems if anything better-supported than the 1964 law.
The relation to the Civil Rights Act is an interesting observation, thank you. However, if the court did not cite the Act in its reasoning the connection is tenuous. It seems me that the most probable explanation is still that the Supreme Court is applying very lax interpretation which strongly depends on the personal opinions of the judges.
I was actually talking about what I see as the real historical, cultural process by which the Court reached its decision. (Do you not think the CRA influenced personal opinions about equality?) And I’m saying even this process has some legal support.
But I must stress that the necessary interpretation by the courts happened in the 1970s—or at least that would have sufficed—and thus focusing on this 2015 ruling makes very little sense.
I’m no longer sure what is our point of disagreement.
The interpretation of the constitution is changing over time, yes—but it’s mostly changing in terms of being added to, not change for change’s sake. Trying to use the constitution as a way to handle recently discovered new situations doesn’t have to imply that two hundred years of prior interpretation is null and void.
I’m not sure I understand. Homosexuality is not a “recently discovered new situation” by any standard.
Perhaps I was being unclear; I was not referring to homosexuality as the new situation. That would be silly.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender. Sure, there were always niche groups asking about it, but a hundred years ago there simply wasn’t enough call for it to push it up to the supreme court.
My overall point is that new situations always come up where you’re not sure what to do, and rather than rip up everything when it happens, the courts try to make it fit within the existing framework as best they can. If something -really- doesn’t fit, it’s the court’s job to hackjob it until there’s proper legislation to cover it. But it’s also the job of the court to run triage; they -could- have legalized gay marriage sooner, but they -should- not have done so, because other things were on their docket up until recently that were higher priority.
Who sets the priority of those things that make it through the courts? Society at large, which is why you need ‘new situations’ such as the definition change I mentioned above.
If you want to toss around ‘should’s for why this didn’t happen sooner, there ‘should’ have been more outcry from the general population saying that this was something they wanted, which of course is absurd.
This is LW. Think meta.
You’re implying that the US constitution either implicitly or explicitly refers to changing societal norms and it is within the supreme court’s authority to decide what these norms are at any given time and how to apply them to the law. If this is indeed your intent, I would like to see some support for it in the text of the constitution. It sounds like the court is authorized to interpret not only the law but also the will of people whereas in my understanding the latter should be the domain of the legislative branch.
The main reason it did so was court rulings on this and related subjects. Thus using your definition of “new situation”, your judicial philosophy seems to amount to “the judicial system can rewrite the constitution however is sees fit”.
While I agree that the process seems absurd on the face of it, I don’t think it’s as nonsensical as it appears at first glance.
It’s way, way easier to have a small group of people re-interpret a static text over and over than it is to have a larger group of people, accountable to an even larger group of constituents, write new text that they all agree on over and over.
edit: I guess basically what I’m saying is that democracy is hard and this is a nice out?
The debate over what is right is different from the debate over what is legal. Laws are generally written in an attempt to reflect what we believe is right. If a conflict should later appear, then the appropriate course of action is to change the law. It’s a very dangerous precedent for a government to openly flaunt laws on the grounds that it’s “right” to do so.
It’s possible to change the constitution through a clearly defined process. It just that the process is hard. If you want to avoid getting a banana republic then it’s important that the laws of the land are honored and the proper mechanism used.
It’s kinda absurd to have a “illegal law”. To my tastes the constitutionality of a law would be an obstacle to getting a bill (isn’t that what law proposals are called?) passed. It is silly to have a law in effect and later withdrawn as it wasn’t a “proper” law. Or is this connected to whether the states or the federation are sovereign?
I can understand for example city statutes being overridden by law, but then if you break a city statute you are not breaking the law as such. I guess the situation might be that state level laws are really closer to statues and only the constitution even attempts to claim the authority of a full law. I am not utterly clear on how a federation works. My whole country is the size of a USA state. We still have separate constitutional and non-constitutional law. Thus the function of regulating the roles of parts to the whole is missing but still the other functions of long-term permanence give cause to have a constitution around. And here non-constitutional laws have stopped into the constitutional standing committee (the organ responsible for drafting constitutional amendments) for being unconstitutional.
It could be argued that the EU has duties of delegating duties of parts to the whole. However there the sovereignty of the member states is clear. If a member state passes a law in violation of a EU directive the union can fine the country in question and it has political PR consequences and in extreme cases the country can be sued to EU court. However it is clear that the countrys law has priority. The union has no hard way of forcing a countrys law to comply against their will (and I think the EU court decisions can only result in massive fines). Then again the union doesn’t even try to enforce any grand idealistic principles. For massive special occasions, like helping greece, every countrys consent is required. While somebody might say that this is a slow decision making process and that it would be faster if a central authority that would have latitude to unilaterally decide what the union does, it isn’t defunct to the point that it can be seen to be a clear failure (and would be a example of a non-mandatory whole-parts delegation that is above a banana republic (meaning that US style constitution isn’t mandatory to get things working on those scales)).
We have a good comparison with a country that is similar to the US in lots of important ways, but lacks a constitution (the UK).
My personal view is that this lack of a line in the sand in the UK makes it easier to trample on people’s rights for bureaucratic convenience, basically. The English culture has fairly good totalitarian antibodies, and this is what makes it work.
edit: Lately I started thinking that maybe it’s all culture in the end, and things like having a constitution or a parlamentary system vs something else means very little once culture is fixed. Perhaps there are (culture-specific) society traps to avoid (hi Germany!), but aside from that there is probably a lot of robustness to organization type.
Note that feeling bound by laws, and in particular constitutions / the will of Parliament / etc., is itself a cultural thing. I get the sense the arrow pointing from culture to institutions is very big and the arrow pointing back is fairly small.
Yes, I agree with this.
And yet, it must be a straightforward situation in the USA. In Ukraine, the people view changes to the Constitution as a Really Big Deal, while new laws that might or might not be unconstitutional get far less attention. After all, if the authorities are corrupt, they can have any law declared constitutional.
An outsider view: when you have a state that is explicitly not an ethno-cultural nation-state, and was not made it not being one in the last 50 years like most European ones but really it was never so, not even when it was a colony (NY was Dutch, Louisana French, Florida Spanish etc. you cannot really reduce America to British ethnicity or culture), then the usual vaguely ethnic-cultural form maintaining tribal loyalty / patriotism / nationalism obviously doesn’t work.
What can you have in that case? A tribe of values. And this is how a constitution can get extremely important. This is basically the rallying flag, this is basically what forms the community, the tribe, the loyalty, the patriotism.
France could go from a throne-and-altar monarchy to a radical, revolutionary republic while still being France because it was understood that a common cultural heritage—not so strictly ethnic, but cultural, ethno-cultural—defines its identity. Whatever it is, it can be defined as the place for the culturally French. (Even if they are brown, they navigated that kind of issue rather skillfully.) But America was never so because this sense of ethno-cultural American identity never really existed—sure, sure, there was an attempt to see it as a White Anglo-Saxon Protestant culture but I think everybody from Catholics in Boston to Dutch in New Amsterdam / York to the Spanish in Florida or French in Louisiana laughed at that. I think WASP-ism was never really a serious attempt, or was it?
So the issue is, without the constitution you basically don’t really have a clearly defined “mission statement”. And that opens up a question what exactly will create loyalty, patriotism, or the lack of “faction” (in the Madison - The Federalist No. 10 sense) in a nation that lacks a unifying culture to be loyal to.
Why does that matter? Wouldn’t it be better to live in a cosmopolitan world lacking any tribal loyalties? Sure it would, but it is far more likely that when nation-states lose loyalty, tribal (political, religious) groups inside the nations gain it. In other words, that leads to civil-waresque situations and arguably that is worse than nationalism. If people need to be loyal to some tribe, it is probably useful if that tribe is an independent, sovereign political unit.
It would be better if people could be cosmopolitan and non-tribal, but if they cannot be so, then let tribes be independent and sovereign so that they don’t mess with each other much, not at peacetime at least, (i.e. being nation-states or other states), and tribes will naturally be formed around something—blood relations, religion, culture, or values. If it is values, and it seems you guys in the US really only have the option of values, why not write them down clearly?
If SSC is to be believed, I mean this post: http://slatestarcodex.com/2014/09/30/i-can-tolerate-anything-except-the-outgroup/ the US is not simply politically but also culturally polarized into red-blue, i.e. does not resemble “usual” nations at all that are held together by a shared sense of culture. Quite possibly that old piece of paper is the only thing keeping you guys from seceding / splitting up / becoming multiple nations and that kind of process is really rarely peaceful and painless.
The primary reasons I see to appeal to the Constitution are as follows:
Appeals to morality or values rely on shared morality or shared values. If I say “forbidding X will improve GDP!”, one can accept my argument as factually correct (forbidding X would improve GDP) but uncompelling (because they would rather X be legal than have higher GDP). Appeals to legality or constitutionality, however, have the shared part mostly taken care of. If forbidding X is unconstitutional, then end of story: forbidding X is not allowed. (Why ‘mostly’ taken care of? Because if the Constitution stands in the way of what people want, they will seek to change or evade the Constitution.)
The chief virtue of the Rule of Law (as contrasted to the Rule of Men) is that people can predict what will happen. In theory, if you read a law, you can predict how a judge will rule on a court case involving that law. (Notice that actual court cases are hard to predict because the sorts of cases that make it to court are the ones where people have differing opinions on how the law works, which typically means that law is difficult to interpret. Most issues of legality never make it to court because they’re clear-cut.) Thus, there is significant indirect value to Doing Things By The Rules, and the fact that the SCOTUS seems to be retreating further and further from Doing Things By The Rules to Doing the Right Thing means that we can’t just argue about rules, but we have to argue about what is the right thing.
Arguments for why a policy is a good idea for America are more relevant than arguments for why a policy is a good idea in general, and thus American policy arguments should be grounded in American policy, which (for most citizens) means grounded in the Constitution (because that one’s short enough they’ve actually read it, as opposed to all the case law since then).
That’s not thinking like a lawyer ;)
Incidentally, this was the most extreme position on the issue at the time. William Lloyd Garrison was nearly lynched, not in a Southern town, but in Boston, in part because the people there (rightly!) saw him as agitating for bloody war to fix a problem that could conceivably be fixed by other means.
One general problem with learning from history is that we only see one of the branches. Garrison, agitating for the end of slavery even at the cost of war, is remembered fondly for helping end slavery, despite that it costed war. But we conceivably could be in a worse timeline than one where the Civil War never happened, and any of dozens of other scenarios played out instead.
A lot of the comments I see seem to be coming from a belief that I am suggesting we throw out or disregard the US Constitution entirely. I’m not. It is mostly a great document for the structure of the country. I’m just suggesting that it shouldn’t be taken as the infallible word of demigods. I am guessing most of you don’t think of it like that. But I’ve encountered plenty of people who do.
The key here isn’t just that the national government legalized gay marriage everywhere. It’s that the supreme court legalized gay marriage everywhere. I don’t think checks and balances were implemented perfectly. But I think some kind of checks and balances are important. In order for a law to pass, you need the House, the Senate, and the President to agree. Or for the House and Senate to each get a 2⁄3 majority. And then it needs to be enforced by the executive branch and upheld by the judicial branch. And everyone in here is someone that had to get the majority to vote for them.
What happened here was a Supreme Court ruling. Nine people, who were appointed rather than voted into office voted with the barest possible majority. And now reversing that requires either that they reverse their ruling (which they’d have to do on their own, since we can’t exactly vote them out) or a constitutional amendment, which is extremely difficult.
You almost refer to the constitution as if it is a document form the deep past. The constitution can be amended and has been several times. This means it is current and representative of peoples current will (- whatever time it takes to make changes into effect). You could be better of arguing that if something that is constitutional shouldn’t be followed it should be made unconstitutional rather than stop following the constitution.
Now it could be a valid line of criticism that in the maintenance of the constitution too much emphasis is placed on the original intents and purposes. But mainly the constitution has been so stable because Americans have kept finding the principles good. If somebody would come and suggest that this liberty thing be taken off from constitution that kind of modification would be unlikely to pass. Other kinds of revisions such as cleaning it from religious references might be more successful (thought I doubt that one).
Disregarding sovereignty of legal entities in favor of ethical considerations very easily takes the form of warmongering where you do crusades to impose your brand of morals. It is like saying that rogue states ought to be bulldozed over. It is a little more understandable when you mean things like Iran with rogue states but when you mean states of your own federation it is remarkably militant. Well, it did end up starting a war. But appeals to constitution are attempts on how it could have been processed without war.
Note that in arguing that sovereignty of states should not be recognized you are warmongering for a war that hasn’t been fought yet (if you are not arguing that the states should hand over sovereignty voluntarily, unilaterally declaring that they don’t have it anymore is taking it away from them by force).
It can be kinda dodgy that amendments to the constitution are not made as often as maybe they should be and that there is undue pressure to keep the legal practice current via interpretation of law. However that existence of the constitution makes a different impact in different times doesn’t by itself tell of a design flaw. If not in the constitution it is a popular ideas that Americans should be judged by a “jury of their peers”. This kind of declaration might lead in a changing sense of justice among ordinary people to give different judgements at different points in time. However it can also be seen to protect american from old dated world views. Inclusion of ordinary people ensures that legal professionals do not stray too far form the realities of everyday life or that old dated worldviews would give unjust results in a new world. Now I am not super thrilled how the situation of application of a law that should have been updated is handled. Ordinary people get a veto right against all the honed intricacies of law machinery. While the attempt to try to have politically motivated supreme court decisions is apparent and a little problematic there is an even bigger problem that anyone that is eligible for jury duty can try to spit on laws that are less powerful than the constitution, gaining a power comparable to that of a supreme court judge. Arguably if your legal system can have the effect of placing a duty to cause a death of a person (capital punishment) it does need pretty heavy duty freedom of conscience. However when the power is so much that showing awareness of it can make you ineligible for jury duty there is a paradoxical situation where citizens can’t be informed of their constitutional guarantees so that persons that use them in appropriate situations do not get overshadowed by persons that use them for politically motivated reasons. Paradoxically if you understand what the constitution does for you, you can’t exercise all its rights (I am not super clear whether every US citizen that reads this has lost part of their constitutional rights, people that know better please inform whether I should retract better).
Unlike some courts of US, The US supreme court is, like it’s name, supreme. It is the final authority on the application of US law. It’s decisions by definition can’t be unconstitutional. If it makes a mistake it must correct itself. Off course the supreme court is free to consult the general public on whether it should make such a correction. But there is none that can compel it in a hard way to make such a decision (you need to bring down all of US law to do it, ie russia with it’s nukes is your best chance of forcing the issue, or “The people” need to withdraw their mandate for which there is no formal process and the informal process is usually called a revolution). In case that there is sufficient difference between the law makers and law interpreters, the law makers must make a new law that is sufficiently clear that it can’t be interpreted in the “wrong way” (or like end the separation of powers and abolish the supreme court). However because retroactive laws are forbidden (atleast of now) those particular cases heard can’t be recovered from (off course you can make laws that make it mandatory to make up past US conduct to particular individuals, but it is kinda bad style of legislation to mention people by name).
Things like same-sex marriage are probably not important enough to bring down the federation of USA down (I guess slavery was?). The issue is how Americans can tackle those issues without trampling with the constructions that keep their country standing. If you mainly care about marriage arrangements you need to show an alternative way how the mechanism that keep interfering can be solved in another way that they don’t interfere with marriage issues. Just throwing stuff to the waste bin is not a solution.
I think we’re heading for a dangerous time in the US.
Charles Murray’s latest book, “By the People: Rebuilding Liberty Without Permission”, makes a compelling case that the US Constitution has been a dead letter for decades, going through the particular cases that empower the apparatchik state to do whatever it damn well pleases, and further draws up a plan to combat the apparatchik state in a legalistic twist on the usual anarcho capitalist “defense agencies”—a defensive legal fund which tries to overwhelm the legal resources of the apparatchiks.
I think his plan is a loser, as it is fundamentally defensive, and only applies once you finally get into court. And I think he should have paid more attention to constitutional theories, and how the “living constitution theory” basically overthrows the Rule of Law with the Rule of Men.
But his book is remarkable in that probably the leading living mainstream libertarian academic, for maybe the last 4 decades, is coming out and saying that the Rule of Law is dead, at least as far as the US Constitution is concerned.
This isn’t some internet crank like Moldbug. He’s as mainstream as libertarians get. For the last 50 years, I’d put him just behind Milton Friedman. And he characterizes the US as a post constitutional order, and then asks the question, “So what do we do now?”
The US has gotten by during this post constitutional order through the willingness of the Right to submit to a one sided Rule of Law, where in the name of the Rule of Law the Right submits to the Left’s Rule of Men. The Right argues by the Constitution, and the Left makes talking noises and rules the way it wants.
What’s coming is an end to the political pacifism of the Right. When your political opponents are unwilling to play by the Rule of Law, you can’t either, unless you’re content to submit to their rule. Cthulu always swims left largely because the Right only tries to prevent Him from swimming left with the Rule of Law, instead of exerting all the power they can muster in the Rule of Men to push Chtulu to the right.
Having two huge cases come out in the same week where the Supremes are just making shit up makes for a real landmark moment that will likely be pointed to for years to come on the Right.
Apparently everybody left from center considers him a huge racist for some of the racial aspects of IQ in The Bell Curve. This really does not do justice to that book, but I am just saying about 50% of your population and 90% of your elites had put him into the fringe extreme crank category. From my outside-US but reading a lot of websites angle, a truly mainstream, non-controversial and generally liked-all-over-the-spectrum libertarian would be Megan McArdle or Glen Instapundit Reynolds. Sowell maybe. Or the Marginal Revolution guys.
Murray may not be an “internet crank like Moldbug”, but that claim sounds plenty cranky anyway. Here is a list of randomly selected bits of the US constitution. (Not quite random. I skipped over some conspicuously boring details, and when there were long sentences I preferred the starts to the ends for reason of clarity.) Which of these things does Murray think have been abandoned?
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States
The Senate shall have the sole Power to try all Impeachments.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States
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.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
Congress shall make no law respecting an establishment of religion
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger
[EDITED to add:] OrphanWilde says that US grand juries are basically a formality. I don’t know enough about the US legal system to know whether s/he is right about this nor how big a deal it is if so. (Scarcely anywhere else even has grand juries, I think.)
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This is the only one so far that seems like it might be being ignored. [EDITED to add: but see grand juries, above.]
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
I promise that I selected those as randomly as I was able. It doesn’t look to me like most of those are dead letters; it looks to me as if they are still how the United States functions. So what is Murray complaining about? I don’t know; perhaps you can tell us; but I’ll guess that maybe he thinks that the list of powers in Article I section 8 has an implicit ”… and these are all the powers that the Congress shall have” and he’s upset at their having more; or maybe he thinks the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) isn’t being taken seriously. [EDITED to add explicitly:] Or something along those lines.
Fair enough, if so. But then he should not complain that the US constitution is a dead letter, he should complain that the Tenth Amendment is a dead letter, or that the list of powers in I.8 is being misconstrued. And his choice to say, instead, that the US Constitution has been a dead letter for decades seems—unless there’s some important thing I’m missing, which there very well might be—like a choice to overstate his case absurdly. Which, as I say, sounds extremely crankish even for someone who isn’t Moldbug.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. ← Is in a constant state of infringement. The current state of the law is getting slightly better.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ← Our Grand Jury machinery is, at this point, an approval mill. The letter of the law may be followed, but the government has completely subverted and destroyed any purpose behind it.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. ← We jail parents who cannot or will not pay child support in many states. I fail to see how this -cannot- qualify as “Involuntary servitude.”
It’s a rubber stamp for whatever the Prosecutors want, which is usually an approval, but in the case of official misconduct, particularly with police, is often a dismissal.
How is the Second Amendment “in a constant state of infringement”? (Do you think there should be a formal well regulated militia? Do you think the existence of any restrictions on who can get and have what guns is an infringement on the 2A? Or what?)
I don’t know enough about US grand juries to comment on that one. I’ll take your word for it and add a note to that effect in the grandparent of this comment.
Putting people in jail for not fulfilling what the state holds to be their obligations to others seems to me like “a punishment for crime whereof the party shall have been duly convicted”. (Which is not to say that the thing in question should be a crime; that’s a separate question and has nothing to do with whether the US constitution is a “dead letter”.) Are you saying that this happens without criminal proceedings?
The amendment, as written, explicitly forbids any restrictions on the possession of guns; it gives militia as the justification for this, but doesn’t make it requisite. “the right of the people to keep and bear Arms, shall not be infringed” isn’t ambiguous at all.
Correct. It’s treated as “contempt of court”, which doesn’t require criminal proceedings. ETA: And the obligations in the first place don’t require criminal proceedings either.
The Takings clause is also routinely violated; property can be charged with a crime (and property isn’t entitled to a trial) and seized.
I don’t see that. Perhaps we have different ideas about what “well regulated” could mean, or about the meaning of “infringed” in the 2A. I’m aware that this is an issue on which feelings run (to me) surprisingly high in the US, so it’s with trepidation that I say any more, but: it seems to me that (1) it surely can’t be (or at least shouldn’t be) a constitutionally-guaranteed right for individuals to own hydrogen bombs or large quantities of sarin gas, so (2) there must in fact be restrictions on what Arms the people may keep and bear, and (3) one obvious way to choose what restrictions would be to look at the context provided in the 2A itself, and to ask: What do people need in order to form a well-regulated militia?
That sounds really broken. -- Still, on reflection I don’t see that this can possibly be what the people who wrote the 13th Amendment had in mind; if it were, they’d have added “or imprisonment” or something of the kind. Is any kind of forced labour required of people jailed for nonpayment of child support? I’m pretty sure it isn’t. And while I’m not a big fan of any kind of imprisonment without trial, it’s hard to see how the police could do their job if it were completely forbidden. (You catch someone robbing a bank at night. Do you have to convene a jury before you can put them in handcuffs or lock them in a cell? Surely not.)
Yeah, and that’s absolutely ridiculous and unjust, no question. But that happens not to be one of the bits in my random sample. I wasn’t claiming to list every provision in the US constitution; just a sample, to see what fraction could reasonably be said to be “a dead letter”. The answer appears to be: a very small fraction.
(I am curious about the downvotes my comments above have attracted. Is there something actually wrong with those comments? I’m having trouble seeing what, and I suspect I’m just getting hit by the disagreeing-with-neoreactionaries penalty again. But perhaps I’m wrong. … Er, for the avoidance of doubt I’m not claiming that you are a neoreactionary, though for all I know you may be. Only that it seems to me that my comments, at any given level of quality, are far more likely to attract downvotes if they are conspicuously in disagreement with NRx opinion.)
[EDITED twice shortly after posting, both times to clarify meaning.]
The militia is to be well-regulated; the right to bear arms is not. As for capital weapons, such a nuclear weapons and nerve gas, the Constitution has a separate provision which forbids individuals to own capital ships, which I think is reasonably extended to cover new capital weapons. (Although strictly speaking, it should be extended by amendment, not by pretending it already says what we want it to.)
Child support under threat of imprisonment -is- forced labor.
If one part of the Constitution is ignored, the entire Constitution is effectively a dead letter.
I wouldn’t say that. We live in an imperfect world, with especially imperfect governments.
But I do say that the current rejection of the 9th and 10th amendments does turn the constitution on it’s head, and fundamentally transforms what was a government of delegated and enumerated powers into a government that rules,and the peasants will take it and like it.
It seems to me that part of the regulation of a militia would involve deciding who bears what arms. That’s certainly the case in an actual army. For the avoidance of doubt, I’m not saying that the words “well-regulated” mean that there should be restrictions on exactly who can bear what arms under what circumstances. Only that (1) “the right to do X shall not be infringed” doesn’t, to me, imply that there must be no restrictions at all on doing X, and that (2) the context of a “well-regulated militia” seems to make it particularly hard to claim that the 2A makes it illegitimate to have the sorts of regulation that a well-regulated militia might have.
I can’t find quite that; only a provision forbidding states to “own [...] ships of war in time of peace”. Have I missed something? In any case, it’s not clear to me what distinction you’re drawing between “capital” weapons and others (it seems like some reasonable interpretations of that term might justify some restrictions on ownership of guns, which AIUI you are opposed to).
On the grounds that you have to work to get the money to pay? I’m not convinced. If you can get the money from savings, or by selling other assets, or by asking friends to make donations, the child support authorities will not mind. Again, I’m not defending the US child support system (not least because I don’t know enough about it to know what I think) but it seems about as obvious to me as anything can be that it isn’t the same thing as slavery, which is what the 13th Amendment was attempting to forbid.
I’m not sure what to say other than: No, I completely disagree, and that seems an obviously unreasonable position. By all means say that if any part of the Constitution is ignored, then the Constitution is no longer being given the authority it should have; but that is an entirely different thing from saying that the whole thing is a dead letter.
“Shall not be infringed” is pretty clear language. And you can -kind of- finagle the language to imply that regulation is acceptable, but it requires finagling, which doesn’t speak to an intent to faithfully interpret.
Hm. I misremembered that article. So apparently it didn’t forbid individuals from owning what were, at the time, weapons which posed significant threats to the government.
For the poor, or poorly-connected, it amounts to the same thing.
What makes it substantively different? If, from a practical perspective, we only do what it says when we agree with what it says in the first place, what does it substantively provide?
It doesn’t seem to be, since to you it’s obvious that it implies “no regulation at all” and to me it’s obvious that it doesn’t! (Though we seem to be agreed that in fact there should be some regulation of individuals’ rights to own some kinds of weapons.)
Apparently. Perhaps it never occurred to anyone at the time that there was a substantial possibility of individuals owning such dangerous weapons.
There are probably people for whom imposing a fine on them would leave them no option but to turn to prostitution. If so, does that mean that having laws that impose fines on people is the same thing as enforcing prostitution?
This all seems terribly overstated to me. If you and I enter into a contract that involves my doing some work for you, is that “forced labour”? I mean, it’s certainly labour I have to do, but it certainly isn’t slavery under normal circumstances. (Perhaps if the contract said “OrphanWilde will pay gjm $10, in return for which gjm will do whatever OrphanWilde requires for the remainder of his life”. Such contracts are usually considered invalid.) I don’t see that being required to pay child support is different in kind. It may be unjust or counterproductive, but it’s a far cry from being slavery. (Just as with my example of a contract, it’s possible to imagine cases so extreme that maybe they should be called slavery: e.g., someone is required to pay his ex-wife $1M/year for the next 30 years despite being neither very rich nor possessed of skills anyone wants to pay millions a year for. But I bet that, just as with my example of a contract, those are not realistic cases.)
For mental hygiene it’s very useful to distinguish can’t be and shouldn’t be.
I’m glad you approve of my doing so.
But perhaps I should expand on my thought processes there. There are two reasons for my linking “shouldn’t” and “isn’t” here, neither of which is as stupid as being unable to distinguish between them.
First: There shouldn’t be such a right, and it seems really obvious and not very controversial that there shouldn’t be such a right, and I’m pretty sure most people (gun-rights advocates included) would agree. Leaving aside what the authors of the Second Amendment might have had in mind (they obviously couldn’t have considered my specific examples), if the 2A were commonly understood to require individuals to own stockpiles of nerve gas and nuclear warheads then (if I’m right in expecting that almost everyone thinks that would be crazy) it would likely itself have been amended; but it hasn’t been. Or at least there would have been serious attempts to argue for it to be amended; but I’ve never heard of such a thing. I conclude that most likely the 2A is not widely held to grant such a right.
Second: OrphanWilde appears to be arguing the “should” side at least as much as the “is” side (“the current state of the law is getting slightly better”), and the more interesting and important question seems to me to be whether totally unrestricted weapon ownership should be permitted rather than whether it is, and if I am successful in convincing OW that it shouldn’t be then I don’t really mind that much whether OW decides that the Constitution doesn’t require it to be or that the Constitution isn’t perfect. (Or, for that matter, chooses to hold inconsistent opinions.) Similarly with the question originally at issue. Murray says that the US Constitution has been being ignored for decades and that’s terrible; rebuttals beginning “No, actually the US Constitution hasn’t been being ignored” and “There’s no particular reason why the US Constitution shouldn’t be ignored, in the ways you say it has been” are—if equally well supported by evidence and argument—about equally effective. (The latter might be more difficult to support well since there’s an obvious reason why a nation’s constitution shouldn’t be ignored. But, e.g., perhaps one might argue that in a document so old there are bound to be things that are just out of date now, and that in some cases it’s better to deal with that by a tacit agreement to ignore those bits or reinterpret them rather than going through all the bother of explicit amendments. That might in fact be a good approach if it were widely agreed that the Second Amendment was originally intended to permit ownership of absolutely any weapons, but wouldn’t have been if its authors had been able to foresee how destructive some modern weapons can be.)
[My apologies if this ends up posting twice: either HN or something else between HN’s servers and me is having some problems.]
This debate is about whether the constitution is dead paper. If you just define the constitution as a document who obviously says the right thing and then you will never come to the conclusion that it’s broken.
I don’t know what you mean with HN.
Mostly. But (as I already said) what actually provoked it is a book saying not only “the constitution is a dead letter” but “and that’s a really bad thing that we should fix”—and in that context, if we find some bit of the constitution that’s allegedly being ignored, it’s then worth asking whether it’s better ignored or not ignored.
I don’t think anyone here is doing that.
I mean that at the time I was writing that, attempts to view HN pages were frequently timing out for me, and my first attempt at posting that comment resulted in an endlessly spinning please-wait animation, so I tried again. I wasn’t certain whether my first attempt might belatedly succeed, leaving two copies of my comment.
It turns out that there was some large-scale network problem in the eastern US around then.
Of course that’s a worthwhile question, but it’s different from the question of whether it’s ignored.
Good to see we’re in agreement again. (I didn’t at any point say that the two questions are the same.)
Yes, basically there are some people like myself and Murray who think the US Constitution delegated enumerated powers to the Federal Government, and that this constitutional order was overturned in a judicial coup over a number of decisions that expanded the Federal Government’s presumed authorized powers to most anything under the sun that isn’t expressly forbidden, and sometimes even then.
Constitutional conservatives have been complaining about SCOTUS just making shit up at least as long as I’ve been alive, but I don’t recall anyone prior to Murray assembling events of this slow motion coup in a single book.
Don’t you mean three?
Isn’t that true by definition? SCOTUS is the final authority on what is constitutional, no?
It did, until a certain amendment was passed.
“right” is a normative term, and so the answer depends on what ethics you prefer. If you fix, say, on utilitarianism, it is not immediately obvious that the positive utility of gay people gaining more rights outweighs the negative utility gay rights cause the religious social conservatives.
What is your ethical model and why that one and not some other?
It seems cleanest to see Constitutional as a two-place word, and to point out that the government’s written policy is to accept CurrentSCOTUS!Constitutional as the binding word. (The SCOTUS can overrule a previous version of itself, for example, which means it’s not quite final.) It’s popular to describe SCOTUS decisions as “morally wrong,” but more relevantly, it seems that they could make decisions that are “logically wrong” and thus aren’t Constitutional in some other important sense.
There’s also commentary here and there about what the Constitutional duties of the non-SCOTUS arms of the government are; the President does have, as part of his oath of office, defending the Constitution, which presumably could require him to stop an insane SCOTUS out to wreck everything, but mostly people discuss in context of presidents signing laws they believe to be unconstitutional.
That came up in one of the Federalist papers:
--Federalst No. 78
Andrew Jackson infamously ignored a Supreme Court ruling in Worcester v. Georgia.