12 ms·
If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
by deep_concern 3mo ago
If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
- ceejayoz 3mo agoKavanaugh's dissent is kinda hilarious in this context. > The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. This, of course, doesn't include machine guns.
- qingcharles 3mo agoI've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case. The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days. The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
- deleted 3mo ago[deleted]
- krapp 3mo ago>The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature? Given that this isn't an issue in any other modern democracy, I'd say "bug."
- willturman 3mo ago‘No Way To Prevent This,’ Says Only Nation Where This Regularly Happens https://theonion.com/no-way-to-prevent-this-says-only-nation-where-this-r-1848971668/ https://theonion.com/no-way-to-prevent-this-says-only-nation...
- lazide 3mo agoEh, since it would most likely be used to remove some key right….
- nradov 3mo agoThe slow pace of change is a feature, not a bug. It's fine to wait decades or centuries until we have broad consensus before making amendments. While this might seem maddeningly frustrating or unjust in the short term, in the long term it makes our republic more stable. The USA has had an uninterrupted system of government since 1789. How many other major countries can say the same?
- ceejayoz 3mo ago> The slow pace of change is a feature, not a bug. To a point. It seems to have ground to a halt. > The USA has had an uninterrupted system of government since 1789. How many other major countries can say the same? Quite a few of them can say "we took those good ideas and built on them".
- nradov 3mo agoIn what sense has it ground to a halt? Eight amendments have been ratified in the past 100 years. I think some people are taking a very short-term view here and lack a historical perspective. Let's see how those other countries are doing 100 years from now.
- redserk 3mo agoA government structure that changes isn’t inherently bad. The US has gone through multiple iterations just by reinterpreting a document. Other countries tend to be a bit more explicit in this. The US in 2026 operates fundamentally differently than in 1910, and both are unrecognizable to 1801. The document was written when there were 13 states, and at best, appetite for a mere handful of others to join. For example, the degree of the weaponization of state-carving in the mid-19th century wasn’t in the cards. A 26 member upper legislature operates substantially different than one comprised of 100 members.
- soulofmischief 3mo agoThe scaling laws involved here are worth precise study. A high majority requirement seems reasonable as you have less and less members. It prevents one person from coming in and convincing two other people to completely change how things operate. But the optimal majority requirement which balances rigidness and flexibility certainly trends downward as an organization grows. By how much? I'd like to know.
- semiquaver 3mo ago> no practical way to ever update the Bill of Rights in the 21st century What on earth do you mean? The practical way is the same as it always was: subsequent amendment. The fact that it requires consensus is a feature. This reads the same way as people who say things like “we just have to accept that Congress is broken and can’t pass new legislation.” Like hell we do!
- lazide 3mo agoThey mean ‘have you seen congress? Good luck’, not that the mechanism is mechanically harder to use.
- qingcharles 3mo agoThis. Getting enough states to agree on a change would be a fool's errand I think. It seems like the reds and blues can't agree on anything at all any longer.
- graveemaster 3mo agoI agree 99% with you, except when it comes to these enormous data centers. When you look at the local zoning committee meetings, you're seeing Reds, Blues and Ind mostly calling for a moratorium on build sites in their communities.
- lazide 3mo agoWhat does that have to do with anything that would plausibly be in the bill of rights?
- Henchman21 3mo agoI mean, after decades of manufactured cultural rifts, we're right where the powers that be want us to be. Disorganized and ripe for exploitation.
- expedition32 3mo ago
- cucumber3732842 3mo ago>The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. Redcoats in your home, comparing notes with all the other redcoats who live in your buddies house and hassle your bartender, watch the comings and goings of everyone else around town, etc, etc.
- 0xbadcafebee 3mo agoWell it's a feature in that the ratification rules were part of an intentional illicit rewrite of the constitution. We could make it easier to modify like other nations, but that also makes it easier to repeal. I think the fix is to require more political parties to be involved, so a 51% majority of a single party can't remove federal laws whenever they have a majority. Then you wouldn't need an amendment to solve controversial problems.
- semiquaver 3mo agoAnything requiring bipartisanship can be gamed with synthetic parties, the legitimacy of which will surely be deemed a nonjusticiable political question.
- watwut 3mo ago> The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature? Of course there is, it is just being done - the constitution is being rewritten out right now by supreme court. All you need is a majority on a 9 person commission.
- monocularvision 3mo agoHow doesn’t include machine guns?
- ceejayoz 3mo agoKeep reading! > In Second Amendment cases, this Court applies the Amendment to semi-automatic handguns even though those did not exist in 1791 or 1868. "Shall not be infringed" apparently applies to unimaginably better weaponry, but they couldn't have anticipated immigrants being pregnant.
- fakedang 3mo agoDoes the right to bear arms extend to stuff like MANPADS, tanks and fighter aircraft?
- ceejayoz 3mo agoI think that’s the only logical conclusion of the “shall not be infringed” absolutists. They shy away from admitting it, though. “Oh, those aren’t arms. They’re, uh, destructive devices!”
- lazide 3mo agoMost would be happy to allow them. Let god sort ‘em out, and all.
- ceejayoz 3mo agoI tend to doubt it. Reagan and the NRA were quite happy to regulate guns when the Black Panthers showed up with them. https://en.wikipedia.org/wiki/Mulford_Act https://en.wikipedia.org/wiki/Mulford_Act
- cucumber3732842 3mo agoHint: If someone says "yeah sure manpads are fine" they're not some fox news boomer who adores Reagan.
- xnx 3mo agoHumans are rationalizing animals, not rational ones.
- anamax 3mo agoRadio, TV, cameras That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known. And then there's Puckle's gun.
- lazide 3mo agoThe Gatling gun also predates any widespread gun control. Notably, the Gatling gun is still legal almost everywhere, including California (lulz!). If that is legal, what is the actual point of 99% if the rest of the bans, etc?
- harimau777 3mo agoThe main point is that there isn't an epidemic of gatling gun crimes in America.
- lazide 3mo agoThere isn’t an epidemic of any other gun crime, by the numbers.
- ceejayoz 3mo agohttps://www.npr.org/sections/goatsandsoda/2023/10/31/1209683893/how-the-u-s-gun-violence-death-rate-compares-with-the-rest-of-the-world https://www.npr.org/sections/goatsandsoda/2023/10/31/1209683... > The U.S. has the 28th-highest rate of deaths from gun violence in the world: 4.31 deaths per 100,000 people in 2021. That was more than seven times as high as the rate in Canada, which had 0.57 deaths per 100,000 people — and about 340 times higher than in the United Kingdom, which had 0.013 deaths per 100,000. https://everytownresearch.org/graph/the-u-s-gun-homicide-rate-is-26-times-that-of-other-high-income-countries/ https://everytownresearch.org/graph/the-u-s-gun-homicide-rat... > The US gun homicide rate is 26 times that of other high-income countries. https://pubmed.ncbi.nlm.nih.gov/26551975/ https://pubmed.ncbi.nlm.nih.gov/26551975/ > US homicide rates were 7.0 times higher than in other high-income countries, driven by a gun homicide rate that was 25.2 times higher. For 15- to 24-year-olds, the gun homicide rate in the United States was 49.0 times higher. Firearm-related suicide rates were 8.0 times higher in the United States, but the overall suicide rates were average. Unintentional firearm deaths were 6.2 times higher in the United States. The overall firearm death rate in the United States from all causes was 10.0 times higher. Ninety percent of women, 91% of children aged 0 to 14 years, 92% of youth aged 15 to 24 years, and 82% of all people killed by firearms were from the United States. We have more firearm homicides per capita than other prosperous countries have total homicides via all methods.
- zeroonetwothree 3mo agoMachine guns are illegal in the US. SCOTUS has never ruled there is an individual right to own machine guns.
- ceejayoz 3mo agoYes, that's precisely the point. The textualists turn out not to be so textualist when they feel like it.
- AngryData 3mo agoFully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.
- camgunz 3mo agoNo. While originalists and textualists purport to refuse to extend any principle into the modern day ("no right to privacy in 3A, 4A, etc"), one they do is that 2A doesn't merely apply to arms of the day, but also to modern arms. It's... pretty blatant.
- anon373839 3mo agoTrump v. United States tells you everything you need to know about the jurists who claim to follow those doctrines. There isn’t a shred of originalism or textualism supporting it.
- anamax 3mo agoElectric presses seem to be covered by the 1st amendment, and there's a much bigger "output" difference between electric presses and manual presses than there is between machine guns and flintlocks. (Not to mention that flintlocks weren't the most sophisticated personal firearms in the 1770s, just the most common.)
- datsci_est_2015 3mo agoMy favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person. Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
- phainopepla2 3mo agoFollowing the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
- datsci_est_2015 3mo agoYou misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists. By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM: - The constitution grants rights - The authors have a bias (WL18CWM) - Originalists essentially ignore this bias, leading to fewer or restricted rights to people who are less similar to WL18CWM
- coldtea 3mo ago>If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is. And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
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- coldtea 3mo agoIt's not so clear cut to me (looking from outside). It makes sense to interpret some cases in historical context and others not, because some cases are not as much affected by the difference in context. That's not being machiavellian - that's avoiding an one size fits all approach.
- jghn 3mo agoThis is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.
- cosmicgadget 3mo agoWho did that?
- whateveracct 3mo ago"strict textualist" bro the 14th amendment is not vague
- onetimeusename 3mo agoThere's a difference between textualist and originalist. There isn't a dichotomy between textualist and living-constitutionalist frameworks only but the two former may overlap. Also the same reasoning you are using applies to people who are living-constitutionalists and suddenly become textualists. https://pacificlegal.org/originalism-vs-textualism-vs-living-constitutionalism/ https://pacificlegal.org/originalism-vs-textualism-vs-living...