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The Future of the Supreme Court (Page 11)
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OreoCookie
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May 27, 2021, 10:12 PM
 
Originally Posted by subego View Post
I’m making an originalist argument. Originalism invokes the framers by definition.
Sure, I know. But people making originalist arguments usually refer to specific sources such as the Federalist Papers and tends to be very theoretical. For example, we could discuss the purpose of the Electoral College and you can make clear references to the Federalist Papers where you quote what different Founding Fathers thought its purpose was.

Here the situation is not suitable to make such simple theoretical arguments, because context is crucial. Would the Founding Fathers be opposed to court packing as a naked power grab? I think it is safe to say “Yes.” Would they consider blocking nominations of qualified candidates for naked partisan purposes in order to have a President of the same party nominate judges instead as court packing? Maybe. What did they mean by advice and consent, was the purpose in their mind just to weed out unqualified candidates? (The British Queen could veto laws, but in practice she doesn't.) What if the Senate, which as far as I understand they envisioned as a more collaborative body full of mature men, not fearing day-to-day shifts in public opinion as much, because they had a six-year term, would stop function as a collaborative body that no longer found any meaningful compromise? What would they think about the filibuster in the Senate? You move so far away from questions they directly considered in their writing that everything becomes sheer speculation.

Lastly, why should we care what they think? They were very smart, yes, and they invented the Model T of democracy, but you could easily argue that the Model T is outdated, because our standards have evolved significantly since then.
Originally Posted by subego View Post
P.S.: thank you for clarifying no accusation was intended.
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May 28, 2021, 07:22 PM
 
Originally Posted by OreoCookie View Post
Lastly, why should we care what they think? They were very smart, yes, and they invented the Model T of democracy, but you could easily argue that the Model T is outdated, because our standards have evolved significantly since then.
In my opinion, an originalist shouldn’t give the framers any special reverence past being legislators who wrote a law.

Any judicial philosophy has to wrestle with the dilemma of impartially resolving cases where the law is unclear. The originalist solution is to extrapolate how the legislators who wrote the law would clarify it.

To me, the chief advantage of originalism is if an originalist can accurately extrapolate a clarification, the originalist has negated any number of personal flaws which could have otherwise affected the outcome. Obvious examples are unconsciously playing favorites based on political persuasion, or even simply being ignorant of a crucial detail.

I want to be clear here. Just because an extrapolation is accurate doesn’t mean it’s right, if you get the distinction I’m making. Sure, it may not be tainted by the personal flaws of the extrapolator, but it very well may be riddled with other flaws. It could be out-of-date. It could be total dogshit in the first place.

I get the impression many originalists don’t see it quite this way. For them, an accurate extrapolation is right by virtue of it accurately reflecting legislative intent. It doesn’t matter if the intent was objectively awful. I don’t agree with this. Like I said above, I consider the value of originalism to be negating the influence of personal flaws. Originalism isn’t “superior” in my mind. It’s an analytical tool with strengths and weaknesses, like any other analytical tool.


The long and the short of why I personally make such extensive use of this tool is I’m better at using it than other tools. I’m playing to my strong suit. This points to something I have yet to address, which is inaccurate extrapolations.

There’s no question I’m going to screw things up and make bad extrapolations. It’s a given. I’ve done it in this very discussion. The thing is, I’m going to screw that up less than I would the alternatives.


So, that’s the meandering explanation of why I care so much what a bunch of dead legislators were thinking.
     
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May 28, 2021, 09:44 PM
 
Originally Posted by subego View Post
In my opinion, an originalist shouldn’t give the framers any special reverence past being legislators who wrote a law.
That’s your opinion, I’m sure other originalists would disagree.
Originally Posted by subego View Post
Any judicial philosophy has to wrestle with the dilemma of impartially resolving cases where the law is unclear. The originalist solution is to extrapolate how the legislators who wrote the law would clarify it.

To me, the chief advantage of originalism is if an originalist can accurately extrapolate a clarification, […]
I think this is an illusion: originalists think that, yes, but in the end it is how they think other people thought at a time many generations removed. Our values, morals and technology are so different that I think it is futile to do so in most circumstances, especially if it concerns anything nuanced, i. e. anything important. The Electoral College would not be designed the way it is today, not least because slavery has been abolished and it doesn’t take weeks to travel from all corners of the US to the capital. What do you do if you find arguments for both sides in one or different Federalist Papers? What if different Founding Fathers have different opinions? Very often I noticed that “originalists” have their favorite Founding Father, you describe yourself as a –ian, e. g. Jseffersonian.

Also, I don’t think this is everything there is to originalism, there is also the text of the law itself (textualism), for example. You can see how Gorsuch arrived at his conclusion in Bostoc vs. Clayton County: he gave more weight to the text of the law and took it literally. This is also another way where you need to weigh things. Here, Gorsuch weighed textualism, precedence and what people now think was the original meaning differently than his colleagues (I deliberately avoided to write originalism).
Originally Posted by subego View Post
[…] the originalist has negated any number of personal flaws which could have otherwise affected the outcome. Obvious examples are unconsciously playing favorites based on political persuasion, or even simply being ignorant of a crucial detail.
I don’t think this is supported by the outcomes: in many politically charged cases Supreme Court Judges vote along party lines. And all of the conservative judges (at least officially) subscribe to an originalist interpretation. I think when originalists claim that they stick closest to the “true” interpretation, they are deluding themselves. This is why the philosophical monoculture that has moved into the Supreme Court is bad: there is more than one coherent and equally legitimate point of view.
Originally Posted by subego View Post
I want to be clear here. Just because an extrapolation is accurate doesn’t mean it’s right, if you get the distinction I’m making. Sure, it may not be tainted by the personal flaws of the extrapolator, but it very well may be riddled with other flaws. It could be out-of-date. It could be total dogshit in the first place.
I wouldn’t use the word tainted, but as I argued originalism is also “tainted” in the exact same way any other judicial philosophy is. You start with your own axioms and how you weigh different axioms should they compete.
Originally Posted by subego View Post
I get the impression many originalists don’t see it quite this way. For them, an accurate extrapolation is right by virtue of it accurately reflecting legislative intent. It doesn’t matter if the intent was objectively awful. I don’t agree with this.
This is precisely why this facet of originalism is ultimately infuses one’s personal opinion into your decision making: when Congress decided that discrimination because of one’s sex is not allowed, many originalists would do the following: back then, they clearly weren’t thinking of homosexuals and trans people. In fact, for broad swaths of the population homosexuality was completely unacceptable. True. But that’s not what the actual text says! You can apply this reasoning to so many other things, including the continued discrimination against people of color: when the law (or the Constitution!) was written, discrimination was normal, and clearly on the minds of law makers and the average citizen. Should that be part of originalist thinking? What if different laws from different eras matter with different thinking-at-the-time?

Like I said, the idea that originalism is closer to the “true” interpretation is a complete mirage.
Originally Posted by subego View Post
The long and the short of why I personally make such extensive use of this tool is I’m better at using it than other tools. I’m playing to my strong suit. This points to something I have yet to address, which is inaccurate extrapolations.
Just because you are better at it, doesn’t mean it is the right way to do it. If you were a high jumper who grew up before the Fosbury flop was invented, and suddenly you have to compete with other athletes that have superior technique, is that still the right way?
Originally Posted by subego View Post
So, that’s the meandering explanation of why I care so much what a bunch of dead legislators were thinking.
Just to be clear, I think it is valuable to know the historical context. I just wouldn’t want to elevate it to the degree many Americans do and call this “the right way”. That’s hubris and narrowmindedness in my opinion. Everything is either black or white.
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May 28, 2021, 10:14 PM
 
Originally Posted by OreoCookie View Post
Just because you are better at it, doesn’t mean it is the right way to do it. If you were a high jumper who grew up before the Fosbury flop was invented, and suddenly you have to compete with other athletes that have superior technique, is that still the right way?
I explicitly stated I don’t consider originalism to be a superior technique, however you’re implying it has been proven to be an inferior technique, which I do not believe to be the case.

Like I said, I consider originalism to be an analytical tool. It has strengths and weaknesses, just like all the other analytical tools at our disposal.

I only consider myself an originalist insofar that it’s my specialty. I would want to share space on any court I was appointed to with judges who have different specialties. My view isn’t worth much on its own.
     
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May 29, 2021, 12:39 AM
 
Originally Posted by subego View Post
I explicitly stated I don’t consider originalism to be a superior technique, however you’re implying it has been proven to be an inferior technique, which I do not believe to be the case.
I don’t think that’s an apt summary of my post. I think being conscious of history is an absolutely valuable perspective when forming opinions in a court of law — as long as this isn’t the only perspective that matters. If that is what you (= subego) are doing, then I don’t think you are an originalist the way it is understood in the context of US jurisprudential philosophy.

Going back to the specific case that sparked this tangent, I would still say that in this instance, looking at history and the Founding Fathers in particular is all that useful. You have too few specific sources and have to put in too much interpretation of your own. Plus, I don’t think it adds anything.

The question of whether or not to add Supreme Court judges is more complicated and nuanced, I think. Founding Fathers IMHO have nothing new or interesting to add, we do not need them nor do I think do we have any writing that’d help us decypher where they would stand — provided they knew the entire context. We can’t exactly ask them anymore. Even if we did, I would expect to get a multitude of answers.
Originally Posted by subego View Post
I only consider myself an originalist insofar that it’s my specialty. I would want to share space on any court I was appointed to with judges who have different specialties. My view isn’t worth much on its own.
Dumb question: are you a lawyer?I thought you worked in the audio/music industry, but I could be wrong. In case you are not a lawyer, I find it weird to claim you are a specialist in any kind of judicial philosophy. I get that a judicial philosophy can appeal to your sensibilities even when you are not a lawyer, but I am surprised you consider yourself “specialized” in it.

Plus, I usually have the impression that most people still work backwards from the conclusion and use their philosophical scaffold to get there. Many conservatives who’d espouse originalism were still upset with Justice Gorsuch when he not just supported the majority in the Bostoc decision, but wrote the majority opinion. That includes even Supreme Court justices in many circumstances (Gore vs. Bush comes to mind, which hinged on states’s (voting) rights). Also for this reason, I think judicial philosophies are often not very useful tools to aid discussion, understand matters better and have a philosophical scaffold that helps you structure your thinking.
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May 29, 2021, 01:19 AM
 
Originally Posted by OreoCookie View Post
Dumb question: are you a lawyer?
I’m a fake, internet judge.

As far as I can tell, the only thing which makes me different from any other fake, internet judge is I actually read the opinions.

I do take it semi-seriously, so I’ve put thought into judicial philosophy. Enough to know what makes a good fit for my idiosyncrasies.
     
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May 29, 2021, 10:28 AM
 
Originally Posted by OreoCookie View Post
Plus, I usually have the impression that most people still work backwards from the conclusion
As an aside, this is how humans are designed to work. It’s a survival adaptation that’s been optimized for high speed and low effort. The conclusion is determined by our instincts, which happens immediately and takes effectively zero brain power, then our brains trick us into thinking we reasoned ourselves into the conclusion. Our brains do this because otherwise we wouldn’t trust the conclusion.

Our brains then further trick us by making us attracted to arguments which support our conclusion, so we can point to those and say “see? I’m right”.


Edit: to bring this back around, and put it into different words.

1) You are absolutely correct people do this.
2) I do it. I’ve caught myself doing it.
3) It’s very hard for me to catch myself doing it because my brain works overtime to maintain the delusion.

So, for the most part, I don’t even bother trying to catch it, and instead consider it an inherent limitation.

This is kinda what I was getting at with originalism being my specialty. The conclusions I’m starting with attract me to originalist arguments. If there is a good originalist argument out there, I’m naturally equipped to find it.

I’m also naturally equipped to find the bad ones, and my limitations force me to consider them way more convincing than they really are.
( Last edited by subego; May 29, 2021 at 12:19 PM. )
     
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May 29, 2021, 11:03 AM
 
Originally Posted by OreoCookie View Post
I don’t think this is supported by the outcomes: in many politically charged cases Supreme Court Judges vote along party lines. And all of the conservative judges (at least officially) subscribe to an originalist interpretation.
To be fair, liberals and conservatives are going to be attracted to different judicial philosophies. I mentioned every philosophy has to address the dilemma of resolving unclear law. Every philosophy also has to address the boundaries between the Judicial and Legislative branches of government. Liberals and conservatives have very different approaches to the solution. This is going to push the Court to split along party lines much of the time, even if everyone on the Court plays fair.

Originalism, if done correctly, heavily restricts its adherents from infringing on the legislature. This is another reason I’m attracted to it. I prefer sharp boundaries between the two.
     
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May 30, 2021, 08:30 AM
 
Originally Posted by subego View Post
To be fair, liberals and conservatives are going to be attracted to different judicial philosophies.
That’s not what I meant, I think you are taking this too narrowly: I think there is much more diversity even within “liberal” and “conservative” judges than that. I attribute that to the rise of the Federalist Society: they have a hold over conservative judicial philosophy in the sense that if you want to become a federal judge and lean conservative, you must have some association to them and rule in their spirit to be placed on their shortlist. As far as I know every Supreme Court Judge who is currently serving on the Supreme Court has had some association with the Federalist Society. I think this monoculture (inside conservative jurisprudence) is harmful in the long run.

AFAIK there is no liberal equivalent of the Federalist Society (please educate me if this is false), so I see less of this on the liberal side.
Originally Posted by subego View Post
Originalism, if done correctly, heavily restricts its adherents from infringing on the legislature. This is another reason I’m attracted to it.
I am not sure that this should be considered as part of originalism. As far as I know current the Federalist Society promulgates a judicial philosophy that has three prongs: originalism, textualism and respecting precedence (in the sense that something extraordinary must happen to overturn legal precedence or an act of Congress). That’s why Gorsuch received so much flak for the Bostoc decision: he gave more weight to textualism than the other two principles. If you accept this weighting, it is easy to understand how he came to that decision. These are a set of principles that make it easier to reach consistent conclusions.

I can think of many other good principles/philosophies that are being blocked: for example, lean towards expanding rights, especially those of individuals. The internet did not exist when the Constitution was written, but clearly, we expect that many of the rights that exist in real life to extend to the virtual world. Interracial and same-sex couples should be able to marry, because it expands rights at the expense of no one else. The fact that my wife is Japanese does not touch your life one iota.

The other principle is that you have layers of sediment made up of precedent and new circumstances. That’s how executive privilege and Congressional subpoena power came to be: they were inferred constitutional rights of both bodies even though they are not mentioned explicitly.
Originally Posted by subego View Post
I prefer sharp boundaries between the two.
I don’t understand what you mean here.
Originally Posted by subego View Post
As an aside, this is how humans are designed to work. It’s a survival adaptation that’s been optimized for high speed and low effort. The conclusion is determined by our instincts, which happens immediately and takes effectively zero brain power, then our brains trick us into thinking we reasoned ourselves into the conclusion. Our brains do this because otherwise we wouldn’t trust the conclusion.
You are right. But this is usually coupled with a sense of superiority because “only they are sticking to a consistent philosophy based solely on logic”
Originally Posted by subego View Post
1) You are absolutely correct people do this.
2) I do it. I’ve caught myself doing it.
3) It’s very hard for me to catch myself doing it because my brain works overtime to maintain the delusion.
Count me in, we all do it. That’s why I think it is better to be surrounded and have to interact with people who think very differently from you. That’s the best insurance against that. That’s why it is harmful of you are surrounded mostly by people who think too much like you do. The world is a very diverse place, and monoculture puts you on the fast track to demise and/or extinction.
Originally Posted by subego View Post
As far as I can tell, the only thing which makes me different from any other fake, internet judge is I actually read the opinions.
I noticed that, and your thoroughness is always appreciated.
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May 30, 2021, 08:47 PM
 
Thank you!


Originally Posted by OreoCookie View Post
I can think of many other good principles/philosophies that are being blocked: for example, lean towards expanding rights, especially those of individuals. The internet did not exist when the Constitution was written, but clearly, we expect that many of the rights that exist in real life to extend to the virtual world. Interracial and same-sex couples should be able to marry, because it expands rights at the expense of no one else. The fact that my wife is Japanese does not touch your life one iota.
How are you determining these particular issues should be resolved by the Judiciary as opposed to the Legislature?
     
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May 31, 2021, 04:08 AM
 
Originally Posted by subego View Post
How are you determining these particular issues should be resolved by the Judiciary as opposed to the Legislature?
I don’t understand the way you see this dichotomy (trichotomy?) between the three branches of government. To me one of the roles of the Supreme Court is to check whether a law or court decisions are compatible with the Constitution. That includes certain state laws (provided there is a valid federal involvement). So the Supreme Court can invalidate laws or parts of laws if they find it is inconsistent with the Constitution, for example. But the Supreme Court does not decide on policy or create new laws. It could, though, give guidelines as to what a constitutional version of that law could look like. Put another way, the Supreme Court can only re act whereas the legislatures are the only ones who can act (as well as react).

I don’t see a big issue, and I don’t think there is anything special about conservative or liberal judges that would favor one point of view over another.

There are always gray areas, of course. For example, when the United States decided that African Americans were “just” human beings in the eyes of the law, then this had a lot of consequences. If, say, the Supreme Court made the decision that a fetus, starting from the moment of conception when the sperm hits the egg, is a human being will full rights, that has a lot of consequences down the line. Similarly with homosexuality: if you, as a Supreme Court judge, think of it as a mental disorder that is to be treated, I reckon you won’t look on gay marriage very favorably. You could call all of that policy decisions. Or a translation of morality of the day to law. That was essentially one of the criticisms you levied against originalism: in many ways the values of American society at the time of founding would be appalling to today’s population.

Even though you did not use the buzz word in your post, but if you allow me to extrapolate, you are essentially asking about the issue of “activist judges”. If that is the case, then I’d say that usually people complaining about activist judges are those opposed to changing parts of the status quo that they don’t want to have changed. But they are totally ok when things are changed that want to be changed. (Ditto for states’s rights. Didn’t hear anything but crickets during Bush vs. Gore or when the lowest common denominator of firearm laws were forced onto other states.)
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Jun 1, 2021, 11:41 AM
 
Thanks for the clarification! I’m coming at this from such a different angle, I didn’t totally understand where you were coming from.

Let me ruminate a bit on a more comprehensive reply.
     
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Jun 2, 2021, 10:50 AM
 
So far this session, the Court’s unanimously told the Ninth Circuit to go **** themselves. Twice.

Feels good, man.
     
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Jun 2, 2021, 02:48 PM
 
Originally Posted by OreoCookie View Post
I don’t understand the way you see this dichotomy (trichotomy?) between the three branches of government. To me one of the roles of the Supreme Court is to check whether a law or court decisions are compatible with the Constitution. That includes certain state laws (provided there is a valid federal involvement). So the Supreme Court can invalidate laws or parts of laws if they find it is inconsistent with the Constitution, for example. But the Supreme Court does not decide on policy or create new laws. It could, though, give guidelines as to what a constitutional version of that law could look like. Put another way, the Supreme Court can only re act whereas the legislatures are the only ones who can act (as well as react).
Let’s take the Second Amendment as an example.

By my (originalist) reading, the protections it provides hinge on the existence of the militia.

For the sake of argument, let’s say I’m correct. The Court handed down a decision saying the militia is irrelevant. Haven’t they created new law?

If a decision deviates from the correct interpretation of law, isn’t it creating new law by definition? I mean, we should technically call it “precedent”, but as far as results are concerned there’s no difference between this precedent and a tiny cabal of legislators jamming a law through in defiance of legislative process.
( Last edited by subego; Jun 2, 2021 at 03:15 PM. )
     
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Jun 2, 2021, 07:24 PM
 
Originally Posted by subego View Post
Let’s take the Second Amendment as an example.

By my (originalist) reading, the protections it provides hinge on the existence of the militia.

For the sake of argument, let’s say I’m correct. The Court handed down a decision saying the militia is irrelevant. Haven’t they created new law?
No, they haven’t, they have merely defined how to interpret existing law. What you call “creating new law”, I’d just label “decisions with significant consequences that change the status quo”.

(I concur that the interpretation of the Second Amendment has changed substantially over the years, and that the interpretation as an individual right with little to no regulation is new.)
Originally Posted by subego View Post
If a decision deviates from the correct interpretation of law, isn’t it creating new law by definition?
No, by the US Constitution, the Supreme Court has the power to tell us what the official legal interpretation is. And this legal interpretation does not have to coincide with the interpretation you or other people deem correct.
Originally Posted by subego View Post
I mean, we should technically call it “precedent”, but as far as results are concerned there’s no difference between this precedent and a tiny cabal of legislators jamming a law through in defiance of legislative process.
I don’t see it this way. You are concerned with decisions that change the status quo in significant ways, specifically where the Supreme Court opposes the Legislature. I’d say that this is how the system of checks and balances is meant to work — if the Supreme Court could not overrule Congress (or state legislatures) on anything important, then they would not be a coequal branch of government.

Legislators are limited by what they can do by the Constitution, i. e. they may not make laws that legalize slavery, because slavery has been abolished in the Constitution. The entity that has the final say in whether laws are constitutional or not is the Supreme Court. But the Supreme Court may not just amend the ACA or introduce Medicare for All. It may not propose laws or change them. However, they may give legislators specific guide rails (often referred to as “tests”) that are meant as objective criteria.

The Supreme Court is limited not just by the Constitution, but they need to wait for cases. They need to check whether the person or entity bringing the case has standing and in the US at least, the minority in Congress does not have standing. (This is different in other countries. One path to the German Supreme Court is for a significant share of the minority parties in parliament to approach the Supreme Court and have them test laws for their constitutionality, a so-called “Normenkontrollklage”.) These limitations balance things out in the end. (I find life-time tenure incompatible with modern democracies, though, in Germany Supreme Court justices serve 10 years, unless they hit retirement age for employees earlier than that. The average age is much lower and we can tolerate bad justices, because we know they won’t be in court for a generation.)

There are cases when the judiciary pushes the legislature, which come closest to the pattern of “legislating”. Let me give you an example from Germany: the Parliament introduced “registered partnerships” for homosexual couples in 2001. Technically, this wasn’t “marriage”, but what the distinction between registered partnerships and marriage was, wasn’t clear, neither philosophically, nor practically. Many German laws had terms that applied to married couples, and over the course of 16 years homosexual couples in a “registered partnership” successfully sued to have these laws be applied to them. Until the German parliament (finally!!!) decided in 2017 to just offer regular marriage to homosexual couples. (I would have skipped this intermediate step.) Because at the end the legal difference in rights between a homo- and a heterosexual couple was almost nil. Even here, I think once you look at the larger context, it isn’t so much the German Supreme Court making laws.

Was it the German Supreme Court that was pushing Parliament? Not really. 75 % of the population was in favor of giving homosexual couples access to fully equivalent marriage certificates. Even among conservatives support was over 50 %. The only thing standing in the way was the conservative CDU/CSU that had been in power since 2005, they blocked any attempt — until just before the election in 2017. Because they knew that if the opposition parties made that into a campaign issue, they’d lose big time. 50 years ago that wouldn’t have happened. Because back then homosexuality was seen by many as deviant behavior, a mental illness. This shift in stance is crucial: it makes complete sense that you do not acquiesce to someone suffering from mental illness. Perhaps it even makes sense to take some of their freedoms away if you think they might harm themselves. Or you think that something is normal, then this house of cards collapses. Judges are not immune to this, they are humans like everyone else.
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Jun 3, 2021, 06:50 AM
 
Originally Posted by OreoCookie View Post
I don’t see it this way. You are concerned with decisions that change the status quo in significant ways, specifically where the Supreme Court opposes the Legislature. I’d say that this is how the system of checks and balances is meant to work — if the Supreme Court could not overrule Congress (or state legislatures) on anything important, then they would not be a coequal branch of government.
You lost me here.

The premise of my argument is a situation where the Court makes the wrong decision. I used the Court’s Second Amendment ruling as an example because I believe it both misreads and misunderstands the Constitution.

If a Court opinion is based on a misreading of the Constitution, there is no difference between that and the Court rewriting the Constitution.

If my Second Amendment example isn’t acceptable, we can use a hypothetical example where the Court misreads the Constitution.

To put this another way, my point isn’t about the Court overruling Congress, it’s about the Court spuriously overruling them.
     
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Jun 3, 2021, 12:38 PM
 
^^^

If I may interject … the point that Oreo is (correctly) making is that the “meaning” of the US Constitution is whatever the SCOTUS says it means. And this isn’t a statement about “right” vs “wrong”. It’s a statement about what’s “legal” … which is not necessarily the same thing. For instance, I would certainly never say that Dred Scott v. Sandford or Plessy v. Ferguson were the “right” decisions. But there is no basis to say that they were not “legal” or “constitutional” decisions. Make sense?

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Jun 3, 2021, 12:57 PM
 
It does make sense, but I reject the premise the Supreme Court is incapable of misreading the Constitution. They obviously are.

Just because their misreadings become law, doesn’t make them a correct reading.
     
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Jun 3, 2021, 01:36 PM
 
"Correct" though, is very much a relative function of the mores of the time/era when the decision is made, as well as the political leanings of the individual justices making the rulings. Many past rulings seem obviously batshit crazy wrong to our modern eyes, but are in-keeping with the times in which the decisions were made. Dredd Scott, I suppose, is the poster child for this.

Despite many peoples' insistence that the Constitution is not a living, fluid document, it absolutely is, and has to be in order to be pertinent as the country grows and continues on.
     
subego  (op)
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Jun 3, 2021, 02:57 PM
 
Whether it’s living or not isn’t a worthwhile discussion, but the speed of its metabolism is.

To continue the analogy, the hot-button question is how fast does the due process clause of the 14th Amendment metabolize backwards conservative states.
     
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Jun 3, 2021, 05:15 PM
 
I'm not sure that interpreting existing law and creating new law are mutually exclusive. In a sense you create new law by interpreting existing law. Certainly when you interpret it in new ways or under new circumstances.
I have plenty of more important things to do, if only I could bring myself to do them....
     
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Jun 3, 2021, 06:14 PM
 
Originally Posted by subego View Post
The premise of my argument is a situation where the Court makes the wrong decision. I used the Court’s Second Amendment ruling as an example because I believe it both misreads and misunderstands the Constitution.
The Supreme Court making a wrong decision is a different than the Supreme Court “making law”. No institution is infallible, and with hindsight we can find many examples (e. g. the decision that Japanese-American internment camps were somehow not infringing on the rights of citizens, etc.). But there exists a mechanism in the Constitution: you amend it and clarify what needs clarifying. This becomes part of the framework the Supreme Court needs to follow.

I would also say that for many topics (think abortion), there is no consensus in the population and hence, among judges, what the “right” interpretation is. For example, I think the ruling that money = free speech was a historically disastrous ruling, one that’ll be in history text books 100 years from now.
Originally Posted by subego View Post
If a Court opinion is based on a misreading of the Constitution, there is no difference between that and the Court rewriting the Constitution.
I still think this specific claim is false: of course, there is a difference. The Supreme Court is the ultimate authority on the interpretation of the Constitution. What they say is the right interpretation is, in the eyes of the law, the right interpretation. To balance this out, no institution is infallible, Congress and the states can amend the Constitution. Now, the flaw that I see in the American Constitution is that it creates a system that is way too rigid. There hasn’t been a constitutional amendment in my lifetime, and I cannot think of one that would pass these days. But that isn’t a flaw of the idea that the Supreme Court is the ultimate arbiter in the constitutionality of laws.
Originally Posted by subego View Post
To put this another way, my point isn’t about the Court overruling Congress, it’s about the Court spuriously overruling them.
Spuriously? Now you lost me again. The shift in the interpretation of the Second Amendment happened over many decisions and decades. There were sudden decisions with large impacts, like the decision to legalize gay marriage, yes, but even that wasn’t spurious (the way I understand the term).
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Jun 3, 2021, 06:20 PM
 
Originally Posted by OAW View Post
^^^

If I may interject … the point that Oreo is (correctly) making is that the “meaning” of the US Constitution is whatever the SCOTUS says it means. And this isn’t a statement about “right” vs “wrong”. It’s a statement about what’s “legal” … which is not necessarily the same thing. For instance, I would certainly never say that Dred Scott v. Sandford or Plessy v. Ferguson were the “right” decisions. But there is no basis to say that they were not “legal” or “constitutional” decisions. Make sense?
Spot on.
Originally Posted by subego View Post
It does make sense, but I reject the premise the Supreme Court is incapable of misreading the Constitution. They obviously are.

Just because their misreadings become law, doesn’t make them a correct reading.
That isn’t my premise at all, of course, the Supreme Court is not infallible, it can and has made mistakes. The Constitution creates a framework for an “infinite game”, where all sides agree to the rules. Like I wrote earlier, there is a remedy for the Supreme Court making mistakes: amendments to the Constitution.
Originally Posted by subego View Post
Whether it’s living or not isn’t a worthwhile discussion, but the speed of its metabolism is.

To continue the analogy, the hot-button question is how fast does the due process clause of the 14th Amendment metabolize backwards conservative states.
Why do you claim the speed is too high? I constantly have the feeling change is way, way too slow.
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subego  (op)
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Jun 3, 2021, 06:40 PM
 
Originally Posted by OreoCookie View Post
Why do you claim the speed is too high? I constantly have the feeling change is way, way too slow.
Almost exclusively because I’m worried about blowback. If that wasn’t a concern, I’d be fine with it going faster, and want it to.
     
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Jun 3, 2021, 06:47 PM
 
Originally Posted by OreoCookie View Post
Spuriously? Now you lost me again. The shift in the interpretation of the Second Amendment happened over many decisions and decades.
It did?

My understanding is almost all our current interpretation is based on District of Columbia v. Heller and McDonald v. City of Chicago. Previous to that point, the Court hadn’t addressed the issue since 1939.

The 1939 case banned sawed-off shotguns, and supported the militia interpretation.
     
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Jun 3, 2021, 07:00 PM
 
Originally Posted by subego View Post
Almost exclusively because I’m worried about blowback. If that wasn’t a concern, I’d be fine with it going faster, and want it to.
What does blowback have to do with anything? Blowback is a political consideration, not a legal one. Avoiding blowback isn’t a good strategy, otherwise the South would still be largely segregated.
Originally Posted by subego View Post
It did?

My understanding is almost all our current interpretation is based on District of Columbia v. Heller and McDonald v. City of Chicago. Previous to that point, the Court had never said how we were supposed to read the Amendment, or whether it applied to the states.
I don’t want to derail this conversation and make it about the interpretation of the Second Amendment. But in short, yes, there were pivotal rulings, but it started, way, way earlier than the two decisions you quoted. I don’t claim to be an expert on the topic, but as far as I understand the key point was a gradual shift from a collective right (i. e. a focus on militia) to an individual right. One nice youtube video is by Knowing Better titled “A Moderate’s Guide to Gun Control”.
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subego  (op)
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Jun 3, 2021, 07:12 PM
 
Originally Posted by OreoCookie View Post
What does blowback have to do with anything? Blowback is a political consideration, not a legal one. Avoiding blowback isn’t a good strategy, otherwise the South would still be largely segregated.
The question is how fast the metabolism of the Constitution should be. The law doesn’t tell us. Isn’t that decision always going to come down to political concerns?

If you have a way of determining the speed of metabolism without resorting to political considerations, I shall adopt it immediately.
     
subego  (op)
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Jun 3, 2021, 07:16 PM
 
Originally Posted by OreoCookie View Post
I don’t want to derail this conversation and make it about the interpretation of the Second Amendment. But in short, yes, there were pivotal rulings, but it started, way, way earlier than the two decisions you quoted. I don’t claim to be an expert on the topic, but as far as I understand the key point was a gradual shift from a collective right (i. e. a focus on militia) to an individual right. One nice youtube video is by Knowing Better titled “A Moderate’s Guide to Gun Control”.
Wiki says there have been 5 cases across the entire history of the Court.

Either Wiki is wrong, or the claim of “many cases” is wrong.
     
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Jun 3, 2021, 08:38 PM
 
Originally Posted by subego View Post
The question is how fast the metabolism of the Constitution should be. The law doesn’t tell us. Isn’t that decision always going to come down to political concerns?
If anything, the US political system is way too rigid, which is why it is creaking and straining in so many places — it hasn’t been adapted over time. I don’t want to go off on a tangent here, but concern that the speed of the metabolism as you put it is too fast seems unfounded. Even if it were found to move faster than political actors would want, I see no reason why this should be a consideration for the Supreme Court or the rest of the judiciary.
Originally Posted by subego View Post
If you have a way of determining the speed of metabolism without resorting to political considerations, I shall adopt it immediately.
The Supreme Court is constructed so that it is removed from political considerations, independence, lifetime appointments, etc. So this is how it functions, and IMHO that is correct. Many of the decisions I’d consider falsely decided are precisely those, where political considerations outweighed legal ones (Bush vs. Gore, for example). I think the protective function of the judiciary is precisely that it does not take politics into account (as much). This is how it protects minorities and people who are not in power. IMHO the Supreme Court works as (originally) designed here.
Originally Posted by subego View Post
Wiki says there have been 5 cases across the entire history of the Court.

Either Wiki is wrong, or the claim of “many cases” is wrong.
I propose let’s keep this for another thread and agree on what is important in the present context, namely that the Supreme Court’s interpretation of the Second Amendment has changed substantially over time. While it seems we do not agree on the minutiae, we seem to be on the same page on the outcome.
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subego  (op)
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Jun 3, 2021, 08:54 PM
 
Originally Posted by OreoCookie View Post
If anything, the US political system is way too rigid, which is why it is creaking and straining in so many places — it hasn’t been adapted over time. I don’t want to go off on a tangent here, but concern that the speed of the metabolism as you put it is too fast seems unfounded. Even if it were found to move faster than political actors would want, I see no reason why this should be a consideration for the Supreme Court or the rest of the judiciary.
The Supreme Court is the one who sets the metabolic speed by way of their decisions.

If the Court decides it takes 26 states adopting a new standard for there to be cause to consider it federal due process, things will change more quickly than if they think it requires 34 states.
     
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Jun 3, 2021, 09:27 PM
 
Originally Posted by subego View Post
The Supreme Court is the one who sets the metabolic speed by way of their decisions.
Why is that a criterion in the first place? There is nothing about “speed of change” in the Constitution, and I don't see that even as a criterion that should enter their decisions.
Originally Posted by subego View Post
If the Court decides it takes 26 states adopting a new standard for there to be cause to consider it federal due process, things will change more quickly than if they think it requires 34 states.
I don't understand your train of thought. The process for ratifying amendments is laid out explicitly. Do you claim that the Supreme Court could decide that 75 % of the states really means 50 % + 1 state?

If your point is that the Supreme Court could in theory make decisions that obviously contradict the text of the Constitution, then sure. But that'd be a discussion akin to the problem that if all Chinese and Indian people jump up and down simultaneously in perfect synchronicity, that this would cause a giant earthquake. It's a giant hypothetical that has nothing to do with reality. If it did happen, it would precipitate a constitutional crisis that would probably end in the impeachment of a majority of the Supreme Court justices. (See, checks and balances.) And if nobody plays by the rules? Well, then the Constitution is just a piece of paper with some ink on it.

But let's get back to actual reality. Most of the Supreme Court's decision are not that obvious, because usually it has to weigh two or more competing rights and interests. Where does free speech end and e. g. libel and slander begin? What are objective criteria for judging whether gerrymandering had undue influence on the outcome of elections? What do you do if you don't have clear objective criteria?
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subego  (op)
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Jun 3, 2021, 10:10 PM
 
Sorry I wasn’t clear.

I’m talking about the due process clause from the 14th Amendment. That’s the primary mechanism the Court uses to federally legalize something.

The Amendment only says the states can’t abridge due process of law. It gives no textual guidance for determining what constitutes an abridgment.

If the Court says “once 26 states have adopted a new standard, the remaining states are abridging due process”, we will federally adopt the new standards more quickly than if the court says “once 34 states adopt a new standard, the remaining states are abridging due process”.

In other words, the pace at which we federally adopt new standards is set by the Courts.
     
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Jun 3, 2021, 10:38 PM
 
Originally Posted by subego View Post
Sorry I wasn’t clear.

I’m talking about the due process clause from the 14th Amendment. That’s the primary mechanism the Court uses to federally legalize something.

The Amendment only says the states can’t abridge due process of law. It gives no textual guidance for determining what constitutes an abridgment.
Ah, ok. I thought you were referring to passing amendments.
So by design it falls within the purview of the Supreme Court, correct? And if Congress did not agree with that, it could pass and amendment and work with the states to have that ratified.
Originally Posted by subego View Post
In other words, the pace at which we federally adopt new standards is set by the Courts.
No, I don't see that it is.
Congress passes laws that set new standards all the time. It is just that Congress has become increasingly dysfunctional that new laws (like, say, budgets) are passed at a very slow rate. That isn't the fault of the Supreme Court, that's the fault of the actors and of the flaws in the Constitution.

To stay within your example, when the Supreme Court decides that a certain entity or a certain law are violating a citizen's due process, then this is precisely part of their constitutionally mandated role. Even if that has sweeping ramifications, I think that is completely in accordance with the design.

I think this perception that the Supreme Court picks up the slack from the Legislature also arises, because the courts are more open to accepting challenges from minorities (Native Americans, African Americans, homosexuals) or people with less power (like women). These usually aren't among the top priorities, quite the contrary. Or you have outright unpopular groups asking for their rights to be respected.
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subego  (op)
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Jun 3, 2021, 11:24 PM
 
Originally Posted by OreoCookie View Post
To stay within your example, when the Supreme Court decides that a certain entity or a certain law are violating a citizen's due process, then this is precisely part of their constitutionally mandated role. Even if that has sweeping ramifications, I think that is completely in accordance with the design.
Yes!

By design, the Court gets to decide the tipping point for when due process is violated.

Where the Court places the tipping point will determine how much time elapses before we reach it.

If the tipping point is 26 states, we will reach that point more quickly than we will if the Court sets the tipping point at 34. Also note, how sweeping the change is depends on this tipping point. The change is far more sweeping if the Court has to flip 24 states versus 16.

Is there some way to determine where this tipping point should be without involving political considerations (like blowback)?
     
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Jun 3, 2021, 11:56 PM
 
Originally Posted by subego View Post
Where the Court places the tipping point will determine how much time elapses before we reach it.

If the tipping point is 26 states, we will reach that point more quickly than we will if the Court sets the tipping point at 34. Also note, how sweeping the change is depends on this tipping point. The change is far more sweeping if the Court has to flip 24 states versus 16.
I still don’t see this as an issue where the Supreme Court makes sweeping changes at a staggering pace. Sometimes principles of law have to be quantified even if that was not part of the original law. That leads to quantitative rules and tests.

This is no different than speed limits. Are speed limits useful? Without a doubt yes. Is there a degree of arbitrariness in them? Yes. Why is the speed limit 40 km/h in the city center of Sendai whereas in Europe it is usually 50 km/h? Why not 43 km/h? Or 38 km/h? Or take an example from contract law: if I offered you an apartment for $1,000 per month (and let’s say this is cheap for what you get) and I double the rent the month after you moved in, in Germany I’d get into serious trouble. That’s because I entered our contractual agreement in “bad faith” (that’s a precise legal term in this case), which triggers a whole bunch of consequences. Does that mean I can never raise your rent? No. Were there landlords that tried to push it? Yes. So courts (and the legislature) had to quantify what they considered acceptable rent increases that would not be considered “bad faith”.

Let me add one important thing, though: other countries’s Supreme Courts may have other options, this is one of the many limitations of the US Constitution. In Germany, the Supreme Court may give the legislature some time to make laws constitutional, and only if the legislature does not implement the changes within that period, will the Supreme Court step in. This is once more a case of the US Constitution being the Ford Model T of modern democratic constitutions.
Originally Posted by subego View Post
Is there some way to determine where this tipping point should be without involving political considerations (like blowback)?
There is no general recipe. Judicial philosophies are a guide that help you systematize them, but even if you have two judges that claim to subscribe to the same school of thought, they might still come to opposite conclusions (think of Justice Gorsuch voting in favor of Botsock vs. Clayton). I specifically think it would be bad if Justices gave political considerations more weight. That’s precisely their role, they should counterbalance the day-to-day politics-oriented Congress and think more about long-term impacts.
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subego  (op)
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Jun 4, 2021, 12:17 AM
 
Originally Posted by OreoCookie View Post
I still don’t see this as an issue where the Supreme Court makes sweeping changes at a staggering pace. Sometimes principles of law have to be quantified even if that was not part of the original law. That leads to quantitative rules and tests.
I’m not taking issue with it. I’m claiming this is a situation where the Court sets the pace, because the pace isn’t set out in the Constitution, and blowback is an acceptable thing for the Court to consider when deciding what the pace should be.

As an aside, are rental leases unusual in Germany? In the US, the lease is what generally stops a landlord from doubling the rent one month after you’ve moved in. The landlord signs a contract which sets the rent for a certain period. Usually at least a year.
     
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Jun 4, 2021, 10:16 AM
 
Originally Posted by subego View Post
I’m not taking issue with it. I’m claiming this is a situation where the Court sets the pace, because the pace isn’t set out in the Constitution, and blowback is an acceptable thing for the Court to consider when deciding what the pace should be.
Just so that I understand this properly: in your opinion, is the problem of pacing a theoretical one? Or do you think it is a practical one, i. e. that SCOTUS has set too fast a pace, and there is backlash in society as a consequence?
Originally Posted by subego View Post
As an aside, are rental leases unusual in Germany? In the US, the lease is what generally stops a landlord from doubling the rent one month after you’ve moved in. The landlord signs a contract which sets the rent for a certain period. Usually at least a year.
I was alluding to a fundamental legal principle in German civil law, the Principle of Good Faith (“Grundsatz von Treu und Glauben”). Since renting is commonplace in Germany, most people rent, most rental contracts are open-ended. The important point, though, was that courts needed to fill in the gaps (with precedent) what precisely constitutes a violation of the Principle of Good Faith, which is not precisely defined. This is the closest I can think of where courts have filled in the gaps of laws and regulations with precedent.
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Jun 4, 2021, 02:47 PM
 
Originally Posted by OreoCookie View Post
Just so that I understand this properly: in your opinion, is the problem of pacing a theoretical one? Or do you think it is a practical one, i. e. that SCOTUS has set too fast a pace, and there is backlash in society as a consequence?
The practical example is same-sex marriage. With that, the Supreme Court set the tipping point for due process at 19 states (i.e., they flipped 31 states).

While not solely responsible, what we’ve been dealing with for the last 4 years is due in part to backlash from this decision. Key being Democrats losing 9(!) Senate seats a year after it was made.
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Jun 4, 2021, 09:35 PM
 
Originally Posted by subego View Post
The practical example is same-sex marriage. With that, the Supreme Court set the tipping point for due process at 19 states (i.e., they flipped 31 states).
I don’t know what you mean by flipped here. If I understand your reasoning (and I did not check the numbers), 31 states did not let same sex couples get married and SCOTUS found that to be unconstitutional. Did the Supreme Court pass a law overriding those 31 states? No, it just saw same sex marriage in the same light as mixed race marriages, which were forbidden in some states, too. In my mind, the exact same logic applies.
Originally Posted by subego View Post
While not solely responsible, what we’ve been dealing with for the last 4 years is due in part to backlash from this decision. Key being Democrats losing 9(!) Senate seats a year after it was made.
Should a minority have to perhaps permanently relinquish rights so as to not upset a sizable minority or local majorities? Should SCOTUS make decisions to benefit one political party over the other? In my mind, the answer to both is an obvious no.
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Jun 6, 2021, 09:53 PM
 
My apologies for taking so long, and further apologies for wanting a clarification before giving a more comprehensive answer.

We can split due process cases into two general categories. The first is when the process under review is directly elaborated in the Constitution, like free speech. The second is when it’s not, like marriage.

Cases in the first category ask the Court “does this law abridge the process under review?”

One approach to cases in the second category is to say those cases ask the Court the exact same question.

Is this, at least roughly, the approach you’re taking?
     
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Jun 6, 2021, 11:12 PM
 
Originally Posted by subego View Post
We can split due process cases into two general categories. The first is when the process under review is directly elaborated in the Constitution, like free speech. The second is when it’s not, like marriage.[…] One approach to cases in the second category is to say those cases ask the Court the exact same question.

Cases in the first category ask the Court “does this law abridge the process under review?”
I don't understand your question.
Lots of laws have been derived from the Constitution or other documents even though they are not explicitly mentioned, and very few cases concern explicitly enumerated rights in the Constitution. Congress's subpoena power is a derived power as is executive privilege, for example. As a matter of philosophy, the US Constitution does not enumerate rights. As far as I understand, the Founders originally thought that most of the rights enumerated in the Bill of Rights were clearly implied in the document. (That's different in modern constitutions, which tend to enumerate rights.)

You also have a layer cake of precedent and previous accepted decisions. For example, you can analogize mixed race marriages to same-sex marriages, and draw conclusions from there.

Be that as it may, where do you stand on the question I asked?
Originally Posted by OreoCookie
Should a minority have to perhaps permanently relinquish rights so as to not upset a sizable minority or local majorities? Should SCOTUS make decisions to benefit one political party over the other?
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Jun 7, 2021, 12:17 AM
 
In the type of due process cases we’re talking about, any decision the Court makes will pit the interests of one group of states against another. Since this consequence is unavoidable, I argue it’s the Court’s duty to consider the ramifications of it. The two groups of states in question may track fo political parties, but the interests of the political parties isn’t the matter at hand, it’s the interests of the states the Court is pitting against one another.

With the first question, I would solve the issue of competing state interests I just mentioned by defining due process based on the degree of consensus among the states (e.g., it takes 26). In this case, a minority would have to relinquish (non-constitutionally enumerated) rights until a majority of states agreed they shouldn’t.



Edit: let me toss out a question. Same-sex marriage was legal in no states in 2003. Were all the states abridging the due process of same-sex couples back then?
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Jun 7, 2021, 03:53 AM
 
Originally Posted by subego View Post
In the type of due process cases we’re talking about, any decision the Court makes will pit the interests of one group of states against another.
You are forgetting one important factor: the Due Process Clause does not just pit the interests of two or more groups of states against one another, fundamentally, it is about states and the federal government not being able to deprive individuals of life, liberty or property.

With same sex and mixed race marriage the conclusion is super easy: if you wanted to marry a partner of the same sex, that in no way infringes on any of my rights. A hypothetical me might not like the idea, but so what?
Originally Posted by subego View Post
With the first question, I would solve the issue of competing state interests I just mentioned by defining due process based on the degree of consensus among the states (e.g., it takes 26). In this case, a minority would have to relinquish (non-constitutionally enumerated) rights until a majority of states agreed they shouldn’t.
But this ignores the rights of the individual — the Due Process Clause precisely exists so that the majority cannot pass laws that deprive a minority from their rights.
Originally Posted by subego View Post
Edit: let me toss out a question. Same-sex marriage was legal in no states in 2003. Were [i]all[/ii] the states abridging the due process of same-sex couples back then?
Yes, absolutely, they were infringing on the constitutional rights of American same sex couples.

To me it is no different than denying people of other human rights. Just because it takes a while for a majority of the population to arrive at the same conclusion, doesn't mean I was wrong.
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Jun 7, 2021, 09:07 AM
 
By this reading, the states have no say whatsoever in what constitutes due process.

Apart from violating the 10th Amendment, it’s just a horrible idea.

If 50 state legislatures, duly elected by the individuals in those states, think something not enumerated in the Constitution should be illegal, then it should be illegal.



Edit: also by this reading, the Court should have rightly legalized same-sex marriage in the late 1800s, and they should have ignored that every state in the country would have retaliated.
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Jun 7, 2021, 07:23 PM
 
Originally Posted by subego View Post
By this reading, the states have no say whatsoever in what constitutes due process.
That’s an extrapolation ad absurdum. State laws just have to be compatible with the federal Constitution, because (75+ % of) the states ratified the US Constitution, so they accepted that it supersedes the states’s constitutions and state laws in certain cases. Moreover, the Due Process clause is not invoked every second Tuesday of the month. The Supreme Court very rarely overrules state laws in this fashion, and when it does, it is for good reason.
Originally Posted by subego View Post
If 50 state legislatures, duly elected by the individuals in those states, think something not enumerated in the Constitution should be illegal, then it should be illegal.
Last time I checked, the 5th and 14th Amendments are still part of the Constitution, aren’t they? And 75+ % of the states ratified them. So they are part of state law. In fact, they supersede state law. That’s how the rules work.

A lot of things we consider part of freedom aren’t explicitly mentioned in the Constitution, but reasonable persons would consider them as part of life and liberty. The right to have children, for example, the right to marry someone or the right to freely move from A to B. Are those enumerated rights? Depends on what you consider “life, liberty and property” actually is. I’d also remind you that as a matter of philosophy the US Constitution does not enumerate all rights. The Bill of Rights was originally thought to be superfluous, because as a matter of course citizens enjoyed the freedoms listed in the first 10 Amendments.
Originally Posted by subego View Post
Edit: also by this reading, the Court should have rightly legalized same-sex marriage in the late 1800s, and they should have ignored that every state in the country would have retaliated.
In the late 1800s a lot of people thought slavery was a-ok and that black, brown and Asian people should not enjoy the same rights as whites. Was that right then and wrong now? And why? What has changed? And come to think of it, the question of slavery did trigger the Civil War. Should the North have conceded and just kept slavery in place as a price for peace? Again, can you sacrifice the rights of a minority for the peace of mind of a sizable minority or majority?

Plus, just because vast numbers of people disagree with you, doesn’t make it wrong. When I was in the US in the late 1990s, homophobia was rampant at my high school among my peers, which has always irked me. Was I wrong to find that wrong? I don’t think so. Compared with my peers, I was just ahead of my time, I guess.
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Jun 7, 2021, 07:36 PM
 
Originally Posted by OreoCookie View Post
That’s an extrapolation ad absurdum.
How so?

In 2003, every state considered marriage not to be a process due same-sex couples.

If the Court had legitimate grounds to overturn all 50 states at that time, every states’ say on what constitutes due process would have been nulled and voided.
     
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Jun 7, 2021, 08:03 PM
 
Originally Posted by subego View Post
How so?

In 2003, every state considered marriage not to be a process due same-sex couples.

If the Court had legitimate grounds to overturn all 50 states at that time, every states’ say on what constitutes due process would have been nulled and voided.
Look at the other examples I have given in my previous post, slavery. Does right and wrong change over time? Or are we just getting closer to more universal rights for everyone?
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Jun 7, 2021, 08:06 PM
 
Originally Posted by OreoCookie View Post
In the late 1800s a lot of people thought slavery was a-ok and that black, brown and Asian people should not enjoy the same rights as whites. Was that right then and wrong now? And why? What has changed? And come to think of it, the question of slavery did trigger the Civil War. Should the North have conceded and just kept slavery in place as a price for peace? Again, can you sacrifice the rights of a minority for the peace of mind of a sizable minority or majority?

Plus, just because vast numbers of people disagree with you, doesn’t make it wrong. When I was in the US in the late 1990s, homophobia was rampant at my high school among my peers, which has always irked me. Was I wrong to find that wrong? I don’t think so. Compared with my peers, I was just ahead of my time, I guess.
What is moral ≠ what is legal. Like, not even close.

As for the Civil War, I’d argue the North had very little interest in abolition, and had much interest in economically wringing the South’s neck.


As a pedantic point, the Constitution only supersedes the states by way of the 14th Amendment being used by the Supreme Court to incorporate specific parts.
     
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Jun 7, 2021, 08:08 PM
 
Originally Posted by OreoCookie View Post
Look at the other examples I have given in my previous post, slavery. Does right and wrong change over time? Or are we just getting closer to more universal rights for everyone?
I addressed this in my last post, but the key observation is “moral ≠ legal” (and to clarify, I mean that as “having to do with law”, not “opposite of illegal”).

My moral positions are a lot closer to yours than my legal ones.
     
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Jun 7, 2021, 09:33 PM
 
Originally Posted by subego View Post
What is moral ≠ what is legal. Like, not even close.

As for the Civil War, I’d argue the North had very little interest in abolition, and had much interest in economically wringing the South’s neck.
I don't want to re-litigate the Civil War. But the Civil War was started by the South specifically to preserve the institution of slavery, because the writing was on the wall. It was not started by the North. After the Civil War, slavery was abolished. That much is fact.
Originally Posted by subego View Post
As a pedantic point, the Constitution only supersedes the states by way of the 14th Amendment being used by the Supreme Court to incorporate specific parts.
There is no difference to what I wrote: the 14th Amendment, which was ratified by 75+ % of the states, specifically extends Due Process to state law. What those “specific parts” are is determined by the courts, especially the Supreme Court.
Originally Posted by subego View Post
I addressed this in my last post, but the key observation is “moral ≠ legal” (and to clarify, I mean that as “having to do with law”, not “opposite of illegal”).
Of course. Yet, our sense of morality (as it is now) critically influences how we interpret the Constitution. If I start with the (morally reprehensible) presumption that African Americans are not fully human and more like animals, I can construct a perfectly logical argument using the same letters of the law, including the Constitution, that slavery is constitutional and that interracial marriage should be forbidden. Ditto if I saw homosexuality as a psychological disorder, you can construct a logical argument against allowing same-sex marriage. That should also resolve any confusion as to why slavery wasn't abolished at the founding or same-sex marriage wasn't legalized in the 1800s.
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