Balkinization  

Friday, July 13, 2018

The Unintended Consequences of Originalism

Gerard N. Magliocca

The nomination of Judge Kavanaugh to the Supreme Court will raise the profile of originalism in public life, though his confirmation hearings and some of his subsequent opinions. Many people are understandably focused on how a more originalist approach would influence doctrine (say on Roe v. Wade). I want to discuss briefly a different effect that originalism may have on the wider culture.

In May, Illinois ratified the ERA. The lead sponsor of that effort in the state House of Representatives explained on the floor that the amendment was necessary because the Constitution as written does not protect equal rights for women. His authority for that proposition was Justice Scalia. In 2011, Justice Scalia gave an interview in which he said: "Certainly the Constitution does not require discrimination on the bass of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that's what it meant. Nobody ever voted for that." The Illinois Representative offered this as support for the argument that the ERA is necessary to protect sex equality. (In what we in the trade call "ironic," this same representative was accused of sexual harassment the next day and resigned his party leadership post in the Legislature.)

One way of describing this argument is fear-mongering. The doctrine is there for sex equality. And a Supreme Court full of originalists is unlikely to repudiate those precedents. Nevertheless, it would be hard to deny that many people might worry (rightly or wrongly) about a constitutional rollback of gender equality. There are two plausible responses. One is to oppose the confirmation of certain types of Justices. The other is to ratify the ERA and make Justice Scalia's comment obsolete. Thus, an unintended consequence of changing the balance of the Court may be a new Article Five amendment.

Broadly speaking, this development is consistent with the originalist vision. The Constitution should be formally amended rather than changed significantly through interpretation.  Taken seriously, an originalist Constitution ought to be much longer than the one we have. The ERA would be a start.

Comments:

If a state didn't allow women to be ministers since this was seen as a threat to their well being (including doing unpleasant things like visiting prisons) even if various religions held that women are called by God, it would be a violation of religious liberty.

One can be an "originalist" and think this. Certain types of originalism might limit the reach of sex equality though just how much it disallows "significant change" is unclear. Then again, originalism (at least the very strict kind) is a bad way to apply the Constitution.

Anyway, if one is an originalist, the ERA ratification can reasonably be deemed over. If we need an ERA, it should be re-submitted to the states. But, I don't think we really need it. There is express protection of "persons," including equal protection, and woman are persons.
 

I'm not sure I follow the logic of the post title. As you say in the post itself, forcing more amendments is what originalists say they want, a point Brett has made here many times. The motivation, of course, is that a very small minority (8% of the population, counting just the bottom 13 red states) can block an amendment. The combination of "originalist theory" plus the practical impossibility of amendment therefore serves only to fix in place originalist policy prescriptions.
 

Gerard: One way of describing this argument is fear-mongering.

Indeed.

Scalia long ago corrected the record concerning this quote before the Senate Judiciary Committee in a response to a Senator Feinstein question:

FEINSTEIN: This is your quote, Mr. Justice, in California: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” So why doesn’t the Fourteenth Amendment then cover women?

SCALIA: The Fourteenth Amendment, senator, does not apply to private discrimination. I was speaking of Title VII and laws that prohibit private discrimination. The Fourteenth Amendment says nothing about private discrimination, only discrimination by government.


Original meaning jurists never argued equal protection of the law does not extend to women. If ratified, the EPA would be redundant and unnecessarily expand the Constitution.

I personally find the process interesting because an EPA ratification may force SCOTUS to address whether Article V grants Congress the power to limit state ratification votes and the states the power to rescind their ratification votes.

 

"The motivation, of course, is that a very small minority (8% of the population, counting just the bottom 13 red states) can block an amendment."

A long while ago, I went out and ran the numbers on the ERA. I'm not going to do that over again, but you're welcome to do it yourself.

The bottom line was that 35 of 50 states had ratified, and those 35 states had 70% of the total population of the US. The potential problem you're complaining about had nothing AT ALL to do with the ERA failing.
 

Per Mark Field's comment, the discussion tbh is a bit forced and seems like a means to promote the author's ERA article. "Brett" will now discuss his philosophy in front of the Senate.

 

Given Brett's own numbers, it seems like the ERA is a very good example of what I was talking about.
 

Assuming you think 8%=30%, yeah, I guess so. The point is that the process wasn't warped at all by the varying size of states; The states that ratified, and those that didn't, were perfectly representative in that regard. The states might as well have been equal sized in that case.

What really killed the ERA is that, part way through the ratification process, the amendment's opponents won the argument, and states stopped ratifying. Some even rescinded their ratifications.

That's why the ERA's backers don't want to just resubmit the amendment, and start from scratch. The support isn't there to ratify it, their only hope of 'ratification' is to count as ratifying states that wouldn't ratify today.
 

8% is the extreme. The fact that even 30% can block an amendment is a travesty, so it reinforces my point.
 

شركة معتمدة فى مجاال مكافحة الحشرات والنمل الابيض ورش المبيدات الحشريه نتمتلك جميع الامكانيات فى هذا الصدد من اجل اسره نقيه وحياة سعيدة ونتمني ان نكون عند حسن ظن العميل
شركة مكافحة النمل الابيض بالدوادمي
شركة رش مبيدات بينبع
شركة رش مبيدات بشقراء
شركة مكافحة حشرات بشقراء
شركة مكافحة النمل الابيض بشقراء
شركة رش مبيدات بخميس مشيط
شركة مكافحة حشرات بخميس مشيط
شركة رش مبيدات بالقصيم
شركة مكافحة حشرات بالقصيم


 

So you just don't like supermajority rules. You want a bare majority, no matter how it happens to be distributed, to be able to amend the Constitution.

Everybody living within 50 miles of the Atlantic, vs everybody else, for instance.

Requiring an amendment to be approved of by a supermajority of states doesn't require massive support for the amendment. It just requires that it be reasonably distributed support. 51% of the population uniformly distributed would hit it over the wall, because every member of a state legislature would have a majority favoring the amendment in his or her district.

Your problem is that you want things which are massively popular in specific areas, but disliked almost everywhere else. You figure the country SHOULD be ruled by people living within 50 miles of the Atlantic.

Not going happen so long as people who don't live within 50 miles of the Atlantic have any say in the matter.


 

True. I don't like supermajority rules (though I'd tolerate them if they were relatively small). The whole justification for democracy is that, in general, the majority is best able to implement the "permanent and aggregate interests" of the country (Madison's phrase). Supermajority rules therefore undermine democracy at the most fundamental level. As Lincoln pointed out, rule by the minority is unjustifiable. When you approve of supermajority rules, you're just outing yourself as an oligarch.
 

Mark, how does 30 percent reinforce your implausible, deliberately misleading claim about 8 percent? There has been no, and will be no, amendment stopped by 8 percent of the population. So your post was a deliberate exaggeration, basically a lie.
 

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" So you just don't like supermajority rules. You want a bare majority, no matter how it happens to be distributed, to be able to amend the Constitution."

[Edited after his comment; he is not a fan but is willing to tolerate certain supermajority rules. Anyway, need not be either/or; can be something in the middle.]

"Requiring an amendment to be approved of by a supermajority of states doesn't require massive support for the amendment."

A reasonable person might be confused since they might think the very point of a supermajority requirement is to require "massive support" of something, but that's a bit of a fool's game, since it is yet again a matter of defining flexible terms & depends also on the case.

This includes the qualifier "reasonably distributed," whatever that means. The current rule requires 3/4 of the states to ratify. Not 3/4 of the American people, mind you, including let's say something where thirty-eight states would at least have 40% support while more heavily populated states could push us over. That wouldn't be "reasonably distributed" enough if the state legislators in the state (or the convention) doesn't vote it in.

I figure as a Californian, btw, he also might be willing to count people near the Pacific though depending on the amendment, the 3/4 rule can block things other places like. In fact, it might block certain things Brett himself likes. OTOH, he does live nearer to the Atlantic Ocean than a large chunk of the country, though make he is in the backcountry of SC.
 

We have significant movement in the special counsel investigation today.

The original "Trump colluded with the Russians" slander suggested Trump agreed to provide some unknown quid pro quo to Russia if Russia hacked and released Clinton/DNC emails through Wikileaks before the election.

Special Counsel Mueller just unsealed an indictment alleging twelve Russian intelligence officers hacked, stole and published Clinton/DNC emails through a "phishing" attack.

Of interest, there is no allegation these Russians entered into a conspiracy with any Americans to commit these alleged crimes. The indictment effectively exonerates Trump and his campaign from the collusion slander.

Of added interest, the indictment makes a fairly detailed set of allegations concerning what malware the Russians placed on the Clinton/DNC computers. This is curious since the Democrats refused to provide their computers to the government for a forensic analysis, which suggests Mueller is operating completely off of the allegations of the Democrats and their IT firm ("Company 1" in the indictment) without any physical evidence. I presume Team Muller again does not expect to prove any of this in court.

Given how the Democrats have falsely characterized this investigation, a neutral investigator would hold a press conference to expressly state he found no evidence the indicted Russians entered into a conspiracy with any Americans to commit the crimes alleged in the indictment. Instead, Mueller remains silent and timed the release of the indictment to sandbag Trump just before a summit with the Russian president.

Spite and malice.
 

Joe:

I thought it was fairly clear: Requiring a majority in a supermajority of spatially disparate samples probes how uniformly distributed the support is. If support for something is uniformly distributed, you don't need an extraordinarily large fraction of the population to support that thing, to get majority support in most of the samples.

The idea is that you don't want the people over here to be ruling the people over there, just because they outnumber them a bit.


 

I'm curious what theory of government you think "spatially disparate" supports (assuming it even has a defined meaning). It sure ain't democracy.
 

I think Brett is right on supermajorities. I would add that you generally need SOME sort of device for ensuring a constitutional Amendment is more difficult than an ordinary statute to pass. Otherwise politicians will just put everything in the Constitution.
 

Brett:

As I noted, if one wants some sort of "distribution" of support over diverse areas, there are various ways to go. "Spatially" is not the only way to determine this either.

And, yes, it depends on how you are using terms. You have to get a supermajority of legislators (or convention votes) in 3/4 of states. That is an "extraordinary" thing by many usages of terms and in practice 3/4 is simply very hard to obtain. If you focus on each specific state, 51% might not sound "extraordinary," but that is pin-pricking it.

I think that some sort of "supermajority" or whatever makes sense (even in state constitutions, e.g., multiple states require passage of something twice, perhaps over a span of time) when amending a national constitution. But, the specific mechanism in place is not the only way to do that.


 

"Spatial distribution", whatever it might mean, seems to me to be orthogonal to the idea of democracy. What you want for democratic legitimacy is reasonable assurance that (a) you've got a good sample of the population (people, not geography); and (b) the decision is considered, as opposed to hasty. There are plenty of ways to do that, some mentioned by Joe, but Art. V is not one of them.

Again, though, let's bear in mind the issue raised by the OP: the consequences of "originalist theory". The flaws in Art. V serve to reinforce the political preferences of the people who call themselves "originalists", and they do that by allowing a minority to govern the country via the Court and the flawed amendment process (plus the Senate, gerrymandering, voter suppression, etc.).
 

"You figure the country SHOULD be ruled by people living within 50 miles of the Atlantic."

If that's a majority, then yes. Folks like you go on about undemocratic elites and yet you'd like to thwart clear majorities based on where they happen to live. Tyranny of the majority may be bad, but tyranny of the minority is always worse.
 

Anyone other than a deluded propagandist would try to hand wave what the Mueller investigation has found, but we have Bart instead. A deluded propagandist will actually bring attention to something harmful to their side because they believe that the bigger the lie the better.

Let's review.

Trump's campaign manager (!) was a literal foreign agent for Russian puppets in Ukraine. He, and Gates (a Trump advisor), lied about this. They laundered money from Kremlin-friendly sources.

Trump's National Security Adviser was a literal foreign agent. He lied about this. The lie was so bad that even Trump dismissed him.

Trump's AG lied about his meetings with Russian officials.

Trump's son and other campaign officials met with Kremlin operatives and the sharing of illegally obtained 'dirt' on Trump's opponent was aired there.

Trump adviser George Papadopoulos met with Russian agents to talk about obtaining 'dirt' on Trump's opponents. He lied about this.

The many intelligence agencies of the US determined that the Russians hacked Democratic/Clinton information. Other foreign intelligence agencies and independent analysis confirmed the findings.

Trump has, notoriously, been relatively uncritical of Russia in many areas.

The investigation into the ties between the Trump campaign and Russia was active well before the election. Lifelong GOP operative Comey kept this secret at the same time he held press conferences and drafted letters re: the investigation into Clinton's emails. Lifelong GOP operative Mueller is now in charge of investigating the Trump-Russia connection, since Trump fired Comey after asking him to drop parts of the investigation.

If even a scintilla of this were true of a Democratic administration Bart would be having a conniption fit of epic proportions.
 

"just because they outnumber them"

lol, in other words, just because of democracy!
 

"So your post was a deliberate exaggeration, basically a lie."

Dilan, you're a smart guy, but this vendetta against Mark, just drop it. I really value Mark's posts here. Please feel free to disagree with him, I've done so too, but you are coming off as petty here sometimes.
 

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The word "tyranny" is a useful concept to take into consideration.

Five family members go to dinner and two strongly oppose on moral grounds a meat option. Or, choose something else; they strongly dislike a particular restaurant for some other reason. I don't think majority rule is always the best appropriate approach.

A reasonable attempt at consensus, taking into consideration strong concerns of a minority (such as, e.g., something that might particularly burden a certain region of the country while an alternative that reasonably advances the goals is available), is a sound policy. Certain things like religion warrant individual rights a sort of override. Other times, it can be something to respect more than something else everything being equal. Some sort of supermajority mechanisms, within limits, might advance this. Regions might not be the only interest at issue here, but the principle is likely to arise in some fashion.

But, at some point, a minority can game the system to a certain degree, be "tyrants," and that is wrong. Nonetheless, the alternative is not simply majority rule, full stop. (Or, majority rule plus judicial review.) Making it harder to amend a Constitution, including some sort of supermajority rule, of appropriate degree, would be one such reasonable approach.

I'm even inclined to think if the amendment is only supported by a too thin veneer of the country there is likely to be a problem. OTOH, it is not likely to merely be supported by the Atlantic coast. OTOH, if a majority of the nation with votes coming from both coasts plus various areas in the middle support something, yes, that's fine, even if it doesn't add up to 38 states. This with the caveat that it would be sound policy to have a special process here that is harder than simple legislation. A supermajority of some sort is likely involved though open to other set-ups.
 

“"Spatial distribution", whatever it might mean, seems to me to be orthogonal to the idea of democracy. ”

Indeed, but unalloyed democracy is a very nasty thing. I suppose that, from a simple numerical perspective, it’s better that the majority oppress the minority, than the other way around. But, “Two wolves and a sheep deciding what to have for dinner.”; Why should the sheep agree to be voted onto the menu?

When you say, “allowing a minority to rule the country”, you take the wolf’s point of view. He’s ruled by being denied his meal. You’re ‘ruled’ by losing the power to lord it over that minority. There are so many things you want the government to do, that we won’t permit to be done. (To us.)

But that denial was the price of having this federation. You want it back, the bargain is void. And we sheep have guns.

So just forget about putting us on the menu.
 

First, stuff about today's news is a bit off topic, but one possible reply to Mr. W.'s analysis is Но ее электронные письма.

As to Brett's comment at 7:10PM, can we move past simplistic animal talk? Mark Field et. al. recognizes various limits to simple majority rule, including judicial review.

Repeatedly, Brett is the one arguing for the wolves there, especially now that he likes the current ones in power more than in the past.
 

Brett invokes a common ridiculous libertarian meme. And in doing so he confirms his antipathy to democracy! But, arguendo the meme, however bad it is to have two wolves decide to eat one sheep, it's worse to have one wolf decide to eat two sheep.
 

As I've said here before, I'm a Footnote 4/John Hart Ely guy, for the most part. There are definitely minority rights which need to be protected, in part because those rights protect the continued operation of democracy, but also because they protect things I value. I absolutely support not just the "democracy meta-rules" such as the 1A, but the EPC, DP, and many other restrictions on untrammeled majority rule.
 

Mr. W: Anyone other than a deluded propagandist would try to hand wave what the Mueller investigation has found

Given how Mueller's first indictment against alleged Russian social media trolls is falling apart (allegations against non-existent entities and people along with millions of Facebook posts alleged to have influenced the election written in Russian) and how he is currently begging the court to protect him from a defendant demanding the evidence against it, you will forgive me if I take this latest indictment with a teeny, tiny grain of salt.

Unless the Democrats have surrendered their computers and servers to the FBI (something they refused to do in the past and are currently fighting in court to keep private from a Daily Beast subpoena), Mueller possesses none of the evidence he alleges and is essentially offering the DNC's indictment.

Your straw men chowing down on a steaming pile of red herring does not change these facts.
 

Mista:

I have no vendetta against Mark. I do think he is an incredibly dishonest person who basically thinks the Constitution enacts a bunch of his own political preferences, and who makes lots of deliberately dishonest arguments.

I state my reasons, and I don't counter every assertion- only the whoppers. But I have a low opinion of hacks on either side.
 

"Spatial distribution" is a non-terrible criterion for a constitutional Amendment. We have a very regionally divided country and always have. This criterion ensures there is a real social consensus in favor of the Amendment that cuts across regions.

I think the specter of coastal elites imposing their values on Red States could be extremely bad. I like the Amendment system.
 

“ And in doing so he confirms his antipathy to democracy!”

Guilty as charged, and proudly so. “Democracy” is just another way of choosing who your oppressors will be, it isn’t an alternative to oppression. Self rule, where it is even marginally feasible, is to be preferred to majority rule.

The US is a heterogeneous society, unfettered majority rule is the road to civil war. We need to go back to the original idea of our federation: that the federal government only does those thing which MUST be done in common, and keeps its hands off everything else.

Subsidarity, not democracy.
 

"Subsidarity, not democracy."

You repeatedly sneer that "the Left" is ignoring democracy. You aren't all "well, yes, it is not that I disagree with them because of democracy, it is how they apply the alternative." No, you repeatedly, when it's your ox, full stop, appeal to democracy. This includes when judges limit the executive you like based on statutory and constitutional demands. Then, you are for the wolves, appealing to democratic results.

Mr. W. is appealing to "democracy" a bit stridently but doubt he disagrees with Mark Field regarding the importance of certain safeguards for the majority. So, we can move past simplistic labels here since no one is simply pushing for raw democracy, let the heavens fall as they may.

Justice Breyer has discussed the appeals of subsidarity. For instance, he argued for a state/federal partnership with certain national rules arising from the powers in the Constitution with state actors doing the specific day to day activities. This is the logic of the militia and the Second Amendment's place in it. The federal government has certain national power over the militia but states have specific day to day roles, including a large role in choosing lower officers.

The Constitution sets forth things that "MUST" be done in common for a workable system. The "original idea" was shown to be impracticable. This was true the second time around too -- the Fourteenth Amendment was part of a decision that certain national rights should be in place with national means to enforce them.

====

BTW, usage of "specter" tends to be to apply to scary things that often are imaginary. I think given current population numbers that something that worked with population contrasts of 13:1 with distrust of popular democracy anyhow is not really workable any more. Not that "coastal elites" are the only ones that are likely going to ratify amendments that require a supermajority of votes to pass. Average people are. But, I'm okay with a modified system, especially one where something like a certain majority of the actual electorate, not only those voting, is in place. Something like that could have avoided Brexit, which was a close vote.
 

Brett at 7:51 AM with this:

"Self rule, where it is even marginally feasible, is to be preferred to majority rule."

might define for us what in his view is "marginally feasible." Or is this Brett getting back into his anarcho-libertarian mode? Does Brett have examples of such "self rule" that we can examine?
 

Brett also at 7:51 AM informed us:

"The US is a heterogeneous society, unfettered majority rule is the road to civil war. We need to go back to the original idea of our federation: that the federal government only does those thing which MUST be done in common, and keeps its hands off everything else."

in the first sentence there is lacking a connector between the two clauses. How might this first sentence be applied to America's actual Civil War? The second sentence seems to go back to the 1787 Constitution as amended during the antebellum period, especially since in those days the 1st A did not apply to the states. Perhaps Bwana Brett on his S. Car. plantation relishes the original idea of White Chrisitan Supremacy dominated my males, as a means of preventing a new civil war. So what might Brett propose to do with America's heterogeneous society to accomplish this?

 

Also, consider the Preamble to the Constitution:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

in evaluating Brett's theme of "Subsidiarity uber Democracy."
 

Check out this URL:

https://fivethirtyeight.com/features/normal-america-is-not-a-small-town-of-white-people/

"‘Normal America’ Is Not A Small Town Of White People" Jed Kolko at FiveThirtyEight, featuring interesting changes in stats going back to the mid 20th century as less dense states have become even lessened. A recent article I cannot pinpoint forecast continuing populations along both coasts, with Illinois the outlier. This goes back to the Great War's [WW I] "How Are Ya Gonna Keep 'Em Down On The Farm, After They''ve Seen Paree."
 

I recommend Maureen Dowd's NYTimes column available online titled "Trump, Having a Bawl in Europe" not only for her comments but also because it provides a link to:

“'Will Trump be meeting with his counterpart — or his handler?' Jonathan Chait asks in his New York cover story."

Chain's article is quite lengthy but worth a read for putting information together in well done narrative form, although the article was published prior to yesterday's disclosures of indictments against 14 Russian officers for interfering in the 2016 election to benefit Trump. But Dowd makes up for that.
 

الشركة تمتلك خبرة كبيرة ومعرفة تامة بكافة الحشرات التي تعيش بمدينة الرياض ونمتلك كافة المبيدات اللازمة للقضاء عليها ونحن بقسم شركة رش مبيدات بالرياض نهتم باقتناء احدث المبيدات المستعملة على الصعيد العالمي حيث نضمن باستيرادها افضل جودة لخدمتنا ونشكل جلسات عمل علي يد مختصين للتوعية واعطاء التعليمات الخاصة باستخدام المبيدات كل نوع منها على حدا لانها تمتاز بتنوع كبير وطرق استخدام مختلفة ونتائج ايضآ مختلفة.
شركة رش مبيدات بالرياض
شركة مكافحة حشرات بالرياض
شركة مكافحة النمل الابيض بالرياض




 

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"More perfect" and "relentlessly uniform" are not the same thing. The Constitution, while strengthening the federal government, (A bit too much, IMO.) did not give it remotely the power it today exercises thanks to a cooperative federal judiciary. And explicitly reserved all powers not delegated to the federal government to the states.

Anyway, more amendments is not an unanticipated consequence of originalism. It's the point of it: Amending is supposed to take place by amendment, not judicial rulings.

Amendments will only be ratified if they have widespread support, which is very different from judicially imposed changes to the Constitution's 'meaning'. I don't fear them for that reason.

Assuming that Congress doesn't usurp the states' authority in this area, as it already has so many areas...
 

Brett: "Self rule, where it is even marginally feasible, is to be preferred to majority rule."

Not only preferable, our Declaration of Independence is predicated on this proposition:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men...<

 

A Declaration of Indepense coupled with military action against England is not a means to govern after success with the military action. That's why there followed the Articles of Confederation, which proved to be inadequate and then replaced by the Constitution. SPAM and Brett are two peas in a pod of anarcho-libertarianism. SPAM and Brett ignore the Preamble to the Constitution.
 

The risks of Helsinki are that because of Trump's adoration of Putin it may become known as Trump's "Americasinki." I wonder if Comrades SPAM and Brett have read the Chait narrative.
 

On point: If Trump is acting like he adores Putin, Russia is lucky he doesn't hate Putin. Short of starting a nuclear war, he'd have been hard put to pursue policies more opposed to Russia's interests.
 

Shag:

Our Constitution limits and divides government power and expressly guarantees many of our liberties to achieve the end of securing our rights to life, liberty and the pursuit of happiness (which is really liberty restated). The Declaration and Constitution go together like hand and glove.

Do you realize that "anarcho-libertarian" is a contradiction in terms and "libertarians" are the polar opposites of progressive, socialist and/or fascist "comrades?"
 

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Having considered this further, I doubt Mueller possesses admissible evidence to prove his allegations.

The DNC never provided the computers which are the subject of the indictment to the FBI, there is no claim the DNC ever preserved images of the hard drives with the malware, and paragraphs 32 and 33 of the indictment note that "Company 1" (the Democrat IT company Crowd Strike) contaminated the evidence back in 2016 by attempting to erase the malware.

The Obama FBI and "intelligence community" and now Mueller is relying solely on the claims of Crowd Strike as to Russian culpability. The Mueller indictment is really an unprovable DNC indictment and the special prosecutor is hoping the named Russians will never appear to make him prove these charges in a court of law.

If Putin really wants to embarrass the United States, have one of the names Russians enter an appearance with counsel, demand discovery of the computers or uncontaminated images of the hard drives, and then set trial.
 

"Self rule, where it is even marginally feasible, is to be preferred to majority rule."

This is like saying that everyone is entitled to due process. Everybody from John Stuart Mill to Karl Marx would agree with it.

The actual issue is how to make decisions (1) about when "self-rule" is "feasible" and when it's not; and (2) what to do when it isn't. It's in those cases that we need democracy.
 

Mark: The actual issue is how to make decisions (1) about when "self-rule" is "feasible" and when it's not; and (2) what to do when it isn't. It's in those cases that we need democracy.

Unless you are harming another, living your life as you please is always feasible.

In cases of substantial and demonstrable harm, the government enacts a law prohibiting the harm which applies to all.

Representative democracy is the least worst means of choosing the government to enact such laws. However, every representative democracy in history has gone beyond prohibiting harms to directing the lives of its people. The system is hardly perfect.
 

[I'll just skip over Brett's cherry-picking of Trump/Russia]

The Constitution, while strengthening the federal government, (A bit too much, IMO.) did not give it remotely the power it today exercises thanks to a cooperative federal judiciary. And explicitly reserved all powers not delegated to the federal government to the states.

The judiciary restrains the executive and legislature much more these days than in the past and originally the understanding was that the courts would only overrule the other two branches if there was a very clear case. The courts are part of the federal government, but again, when it suits, Brett is okay with giving them more power.

Anyway, it is a matter of details -- the powers of the federal government as applied today overall arise from delegated powers. The Constitution leaves open the chance to do this as applied to new needs and understandings of the facts on the ground. The Founders said as much, if one cares about what they said.

There are limits, but again, Brett repeatedly opposed applying them to Trump. Because he disagrees on the details, like those who disagree with him do.

Anyway, more amendments is not an unanticipated consequence of originalism. It's the point of it: Amending is supposed to take place by amendment, not judicial rulings.

Other methods don't "amend" the Constitution by definition. They apply it in different ways. A basic "point" of originalism is to restrain. In practice, it doesn't.

Amendments will only be ratified if they have widespread support, which is very different from judicially imposed changes to the Constitution's 'meaning'. I don't fear them for that reason.

There are various ways to change judicial rulings and they have been repeatedly over the years. The judges btw are there because the people elected people who appointed and confirmed them & the judges generally don't go ahead of the people's wishes.

Assuming that Congress doesn't usurp the states' authority in this area, as it already has so many areas.

Congress generally doesn't usurp state's authority and your concern they will interfere with the amendment process unjustly is not matched up by actual practice.
 

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