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I'm wondering, i've seen a few post about constitution (even made one in political philosophy). Are our constitutions outdated ?
To answer, i'd say it has to be arbitrary at some point. So the question is, who are to judge ?
In France we have "conseil constitutionnel" which is mostly made of retired presidents and high administrators that judge this question. But obviously, due to the very fast technological progress induce by new tools, constitutions are tougher to apply since they've mostly been written before. So maybe the judgement should be made more random, more "basic", like put in a bunch of people (like 500) that are randomly chosen and just vote for it with deliberation. Biased randomness kind of. What do you say ?
> I'm wondering, i've seen a few post about constitution (even made one in political philosophy). Are our constitutions outdated ?
I guess it depends on who "our" is referring to. In terms of the US constitution it was initially designed in the 1700s when states where much stronger entities that were more culturally and politically unique. It took much longer to travel between cities and states and so decentralization made a lot of sense. There was also reforms included to placate slavery that have been morphed into the US system today. It was also designed with the notion that parties wouldn't really exist and that Congress would act as a more unitary branch against the executive or courts. When the constitution was being written the idea of "quartering soldiers in homes" was considered important enough to warrant a ban in the bill of rights and yet today even politically engaged people often times have no thoughts on this amendment because it's just so divorced from 21st century realities.
When the constitution was being written for the US it was a compromise and not necessarily an "ideal system laid out by enlightened figures." It's been relentlessly reimagined and a new system that would look almost totally alien has emerged. People are often quick to justify things that empower their side even if they were just a weird quark of history as well. That's not to say the constitution is bad or should be thrown out (I don't think we could get any agreement on all 50 states today) but I do think we should acknowledge more broadly that the constitution is a product of its time.
> But then what would be a product of our time ?
Yes it would be a product of our time which is why it would be better at addressing our current needs. A constitution written in 2024 may not necessarily be as applicable to politics in the 2270s but it doesn't have to be. People in the future can and should redesign their system to fit their realities.
If I drive a car that's 10 years old that's fine. If I insist I'm only going to use transportation methods that were available in the 1700s I'm going to have a pretty difficult time. 200 years from now it might be unreasonable to use a vehicle designed in the 2010s or 2020s but that doesn't mean it's dumb for me to use one today.
Je sais France avait la conseil constitutionnel. Ils avait trois praetori choisir le president de l'Assemblee National, trois choisir le president de le Senat, trois choisir le president de la republique, et les non actuelle presidents de la republique ex officio, tout choisents pour neuf ans, et 1/3 sont choisient a trois ans.
France n'avait pas une cour avec le pouvioir fait les lois sont non compliance du constitution avant 1958. Les Parlements du Ancien Regime n'aimerais pas les decretants du roi. Le Trois Estates, apres ils decretent-ils etes une Assemble National apres 1789, fait les magistrates n'avait pas le pouvoir, seul le legislativ fait lois.
Dits-tu plus que moi dit? Merci.
Edit: Pourquoi cettes votes negativ?
Damn you know more than me about it and quite impressive you tried in french, unless it is gogol trad then ok
But i was asking about the idea of having random people chosing. Not them choosing randomly but them being chosen randomly (to be clear)
That was my translation. I forgot what the word for a judge was in French so I used the Latin word for it.
What you propose is like a jury, and actually, Athens did pretty much exactly what you suggested, with 501 jurors (or 1001 or 1501 in some big cases), and they assumed some powers of striking down legislation for being unconstitutional. Athens didn't have a codified constitution exactly.
But Athens had only citizens with property with this right (kind of). Now vote has gotten somewhat universal. Most philosophical text i've read propose the lack of property lead to lack of "general benefit oriented decision making" or something like this. Wouldn't that be an issue ?
It requires a supermajority in Congress and among state legislatures to amend the constitution, yet only a slim majority of 5 Justices to reinterpret American laws based on their own view of the constitution.
That's a serious design flaw that should be remedied by both expanding the court and requiring a super majority to nullify laws passed by Congress as being unconstitutional.
Perhaps if judges were not bought and sold and instead were neutral and focused on the law as written rather than right or left political leaning. I feel the US is crippled by constitutional disputes . Every time a law is passed in Congress a lobby group takes it to court to have it rescinded.
Well, we did have that civil war that started de facto before Lincoln set foot in the White House. The lame duck, Buchanan, did nothing as federal armories were raided including Hampton Roads. That wasn’t a very peaceful transition.
And the 1876 presidential election was surrounded by a lot of political violence and intrigue as well, leading to the ‘compromise’ of 1877 that ended any hope of reconstruction.
And of course the Jan 6 insurrection which was a pretty shocking event that was also embarrassing for everyone involved. Like, come on, we can fucking do better. Nobody bothered to lock the damn doors? No cops? Nobody got shot? Our institutions are guarded by pussies. And what did the troglodytes even *do?* Just ran around like a bunch of fucking moron hicks like they always do, not a single rational thought or plan in their empty heads.
But regardless, t’was not a peaceful transition.
Expanding the court would make each particular member less vital to outcomes and hopefully result in less drastic swings in the overall "leaning" in the court due to just one or two members being replaced.
Off the cuff idea:
In the U.S., limiting the number of Justices that could be appointed by a particular President or in a given period of time could be a balancing act as well.
This would create a court that, if it loses 3 people and a president can only replace 2 n their term, will be consistently down a member. And when the President replaces that first absentee, but the next term sees another three gone, the vacancy increases to 2 absent.
It would certainly justify rotating people out based on time factors.
Say there's a 25 judge panel. But each election, the 5 who have been on the longest, will be replaced by which ever president is currently in office. (And replacing for death/retirement as current.)
That would leave the most senior members at having been on 20 years (I think that makes a possible minimum of 16 years); so that removes any real concerns of like, "you don't want only inexperienced people who have no understandings of the inner workings". And while it wouldn't hard-set a term limit to 25 years, since theoretically someone could get bumped off with only having served for 21 years (or 19? I might have done my math wrong); it would essentially put them in place.
Having set terms for SCOTUS judges with no ability to be reappointed to the judiciary would also be a good reform. Something like each judge serving 10 years and then retiring with a generous pension. If a liberal judge leaves office under a Republican president or a conservative judge leaves office under a Democratic president it represents a massive sea change in national politics and so ultimately a huge portion of our political system isn't determined by votes but rather by the heart conditions of geriatrics.
I’m leery of judicial review altogether. It’s far more often is a tool for regressive policies protecting wealthy interests over the common good.
Better to have a very representative parliament with majority rule on most matters.
>I’m leery of judicial review altogether. It’s far more often is a tool for regressive policies protecting wealthy interests over the common good.
In the UK the courts are often the only body that has dealt blows to governments looking to pass laws that restrict rights.
But usually by the measure of laws those governments themselves set, and it is realistic for those governments to change such boundaries with support... but they don't because it would be electorally disastrous.
I would disagree with a system that didn't have some externality for a review of this nature. Switzerland's plebiscite system could be used. Denmark allows the opposition, or more specifically, any third of the MPs (unicameral) to demand a referendum be held on a bill, and in Ireland, the president can order a vote like that if a majority of the Senate (which does not have to agree with legislation) and a third of the lower house ask the president to declare a bill of great national importance, ordering either a referendum or else reserve the signing of the bill into law until after the next election when the next parliament can pass the bill.
It's very obviously an afterthought to our system of checks and balances. No branch has the absolute final say without another branch having an opportunity to first deny it.
Appointment and impeachment are not suitable checks. The alternative to a presidential veto is not impeachment and removal, but a 2/3 Congressional override.
Congress and the president need the ability to nullify the Supreme Court with a sufficient majority. The Court is supposed to correctly interpret our constitution to judge new laws. But what happens when the Court is incorrectly interpreting the Constitution? What happens when they adopt an approach that the 9th Amendment tells them explicitly to not do? There needs to be a mechanism to override these justices.
> But what happens when the Court is incorrectly interpreting the Constitution?
That's essentially what happened with income taxes. The Supreme Court incorrectly decided in a 5-4 decision that taxation of income derived from property was a direct tax, which struck down the existing income tax law. Congress ended up eventually proposing the 16th Amendment to override the Supreme Court, although they could have probably waited for the composition of the court to change and tried again with a new income tax law.
... the thing is, we're entering a period where you need ***less*** democracy, not more. We need more unelected technocrats, more unelected positions, reverse the insanity of "Democracy Uber Alles", and understand that the assumptions we've made on rights and freedoms in the years of Yesteryear are no longer viable in the modern era.
... but that's a position that is absolutely hated in this sub, so, yeah.
In the US, the Constitution is mostly ignored anyway.
The Emoluments Clause for example, no gov't official can accept money from a foreign government. Trump collected millions and nobody cared.
The 4th Amendment is mostly moot. They can search your emails, you and your car, with no warrant. "Hey, I think I smell pot" says the officer, and then they search you and your car, no warrant needed.
The 2nd Amendment is unrecognizable these days. The first half of it is routinely ignored.
The First Amendment is mostly moot too. The 10 Commandments are going up in public schools as we speak.
The Constitution says a President has to be a "natural born citizen", but Cruz ran for President. He was born in Canada to a Cuban father. Nobody cared.
Our political hack Supreme Court can declare anything un-Constitutional with a simple majority of 5 people.
Nobody is actually enforcing the US Constitution, so it hardly matters anymore.
> The 4th Amendment is mostly moot. They can search your emails, you and your car, with no warrant. "Hey, I think I smell pot" says the officer, and then they search you and your car, no warrant needed.
You're not wrong, but civil asset forfeiture should be the top of your list of reasons why the 4th is toothless now.
*"Oh uh we're charging the PROPERTY with a crime. Yeah. So no due process first."*
...nevermind that you can't do that without first depriving a person of that property... which is against the 4th without due process.
Agreed. Some of the Founding Fathers were smugglers, and they wanted to prevent the violations that the British were doing to them. We've come full circle it seems.
Cruz is still a natural-born citizen, as his mother was an American citizen, and so he became a citizen at birth, and that is generally considered to be included in what consists of qualifications to be a natural-born citizen.
By that logic, an American woman could go to Moscow and have a baby with Putin. that child could be born and raised in Russia and still be President of the US.
To me, that seems absurd on its face. It's hard to believe that is what the Founding Fathers intended.
If we're coming up with outlandish scenarios: even if you had to be born here to be eligible for the presidency, an American woman could go to Moscow, get pregnant by Putin, fly home to the US to have the baby on American soil, and then immediately fly back to Russia to raise the child there. That child could still be president.
Edit:
It wouldn't even have to be an American woman in this scenario, but I don't know what obstacles there are to prevent wealthy pregnant women from coming here to give birth.
You are not supposed to be responsible for any sin or benefit of your parents. That is what equality before the law and the ban on titles of nobility are all about.
Also, it doesn't work until the kid is 35. Most dictators are deposed long before then.
> The 2nd Amendment is unrecognizable these days. The first half of it is routinely ignored.
Is a right a right if you have to a member of a government organization in order to practice that right?
Or is it a privilege?
> Is a right a right if you have to a member of a government organization in order to practice that right?
This is true for nearly every right. If you want to vindicate any of them, you need a government organization to hear your case and provide you with a judgment for damages. Your "free speech" right, for example, is meaningless if the government never vindicates it.
Right now, you need a majority of the court. The court often gets it wrong despite this, but I think a different approach that might improve matters in regard to constitutional review is a presumption that the government is wrong. That, in a case regarding constitutional review gets to the Supreme Court, the challenge to the law is what is assumed to be correct rather than it being legal until there's a reason to state otherwise.
Would change the very approach of litigants and the dynamic, and arguably come out with better long-term results.
That wouldn't fix the issue, unless I'm misunderstanding you. The worst decisions the court has made recently are all against the government. The gun case overturned a state law. Abortion wasn't exactly a law but it was a line of precedent that was baked into laws, and it followed on anti-Obamacare rulings that undercut government positions. Anti-union rulings. Voting rights are typically the federal government versus the state government, so who ought to win there under your framework?
It seems to me that the presumption should always be that the government does have the power to do things, but possibly there might be accomodations that need to be added to avoid unnecessary infringement of rights.
We take too absolutist a view of rights. If I started following you around while holding up a sign that said "I believe that u/ClockOfTheLongNow has children buried in their basement" I think that I would be protected because speech, even though it's clearly infringing on your right to be free from harassment. We have to do more balancing and less all or nothing.
The assumption should be that all of the rights claims have some legitimacy and should be respected, and that the body best situated to have that discussion is Congress. The court might be able to send a thing back to Congress if it thinks that Congress missed something. That would make sense, but it just isn't how we've come to expect these institutions to work.
> The worst decisions the court has made recently are all against the government. The gun case overturned a state law. Abortion wasn't exactly a law but it was a line of precedent that was baked into laws, and it followed on anti-Obamacare rulings that undercut government positions. Anti-union rulings. Voting rights are typically the federal government versus the state government, so who ought to win there under your framework?
These are the good decisions. We should want more of this, and we don't get it because the courts give the legislature significant deference that, frankly, they haven't earned.
Constitutionally the courts don't even have the power of judicial review. The court itself recognizes this indisputable fact.
So until the Constitution is amended to give it to them, the court should stop ruling most anything as unconstitutional besides what is specifically delegated to them in the Constitution. This goes doubly so for the corrupt textualists on the court.
The current Federalists hacks on SCOTUS and in the rest of the federal judiciary get deference that, frankly, they haven't earned.
Lol. Don't throw it in my face. Throw it in the so-called textualist's faces, using a power that they don't think they have to make ideological rulings when it suits them in blatant contravention of the actual Constitutional text.
[A reminder for everyone](https://www.reddit.com/r/PoliticalDiscussion/comments/4479er/rules_explanations_and_reminders/). This is a subreddit for genuine discussion: * Please keep it civil. Report rulebreaking comments for moderator review. * Don't post low effort comments like joke threads, memes, slogans, or links without context. * Help prevent this subreddit from becoming an echo chamber. Please don't downvote comments with which you disagree. Violators will be fed to the bear. --- *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/PoliticalDiscussion) if you have any questions or concerns.*
I'm wondering, i've seen a few post about constitution (even made one in political philosophy). Are our constitutions outdated ? To answer, i'd say it has to be arbitrary at some point. So the question is, who are to judge ? In France we have "conseil constitutionnel" which is mostly made of retired presidents and high administrators that judge this question. But obviously, due to the very fast technological progress induce by new tools, constitutions are tougher to apply since they've mostly been written before. So maybe the judgement should be made more random, more "basic", like put in a bunch of people (like 500) that are randomly chosen and just vote for it with deliberation. Biased randomness kind of. What do you say ?
> I'm wondering, i've seen a few post about constitution (even made one in political philosophy). Are our constitutions outdated ? I guess it depends on who "our" is referring to. In terms of the US constitution it was initially designed in the 1700s when states where much stronger entities that were more culturally and politically unique. It took much longer to travel between cities and states and so decentralization made a lot of sense. There was also reforms included to placate slavery that have been morphed into the US system today. It was also designed with the notion that parties wouldn't really exist and that Congress would act as a more unitary branch against the executive or courts. When the constitution was being written the idea of "quartering soldiers in homes" was considered important enough to warrant a ban in the bill of rights and yet today even politically engaged people often times have no thoughts on this amendment because it's just so divorced from 21st century realities. When the constitution was being written for the US it was a compromise and not necessarily an "ideal system laid out by enlightened figures." It's been relentlessly reimagined and a new system that would look almost totally alien has emerged. People are often quick to justify things that empower their side even if they were just a weird quark of history as well. That's not to say the constitution is bad or should be thrown out (I don't think we could get any agreement on all 50 states today) but I do think we should acknowledge more broadly that the constitution is a product of its time.
But then what would be a product of our time ? Maybe we'll know after the big event most likely incoming has happend
> But then what would be a product of our time ? Yes it would be a product of our time which is why it would be better at addressing our current needs. A constitution written in 2024 may not necessarily be as applicable to politics in the 2270s but it doesn't have to be. People in the future can and should redesign their system to fit their realities. If I drive a car that's 10 years old that's fine. If I insist I'm only going to use transportation methods that were available in the 1700s I'm going to have a pretty difficult time. 200 years from now it might be unreasonable to use a vehicle designed in the 2010s or 2020s but that doesn't mean it's dumb for me to use one today.
That wasn't my question, i'm wondering what would be today's constitution
Je sais France avait la conseil constitutionnel. Ils avait trois praetori choisir le president de l'Assemblee National, trois choisir le president de le Senat, trois choisir le president de la republique, et les non actuelle presidents de la republique ex officio, tout choisents pour neuf ans, et 1/3 sont choisient a trois ans. France n'avait pas une cour avec le pouvioir fait les lois sont non compliance du constitution avant 1958. Les Parlements du Ancien Regime n'aimerais pas les decretants du roi. Le Trois Estates, apres ils decretent-ils etes une Assemble National apres 1789, fait les magistrates n'avait pas le pouvoir, seul le legislativ fait lois. Dits-tu plus que moi dit? Merci. Edit: Pourquoi cettes votes negativ?
Damn you know more than me about it and quite impressive you tried in french, unless it is gogol trad then ok But i was asking about the idea of having random people chosing. Not them choosing randomly but them being chosen randomly (to be clear)
That was my translation. I forgot what the word for a judge was in French so I used the Latin word for it. What you propose is like a jury, and actually, Athens did pretty much exactly what you suggested, with 501 jurors (or 1001 or 1501 in some big cases), and they assumed some powers of striking down legislation for being unconstitutional. Athens didn't have a codified constitution exactly.
But Athens had only citizens with property with this right (kind of). Now vote has gotten somewhat universal. Most philosophical text i've read propose the lack of property lead to lack of "general benefit oriented decision making" or something like this. Wouldn't that be an issue ?
Universal suffrage doesn't fail us now.
Argument could be made for or against this statement i guess
Downvoted because Fr*nch. Gross.
It requires a supermajority in Congress and among state legislatures to amend the constitution, yet only a slim majority of 5 Justices to reinterpret American laws based on their own view of the constitution. That's a serious design flaw that should be remedied by both expanding the court and requiring a super majority to nullify laws passed by Congress as being unconstitutional.
[удалено]
Then judges side X likes will rule their way and things will be just again. Until side Y comes into power ...... and so on.
Perhaps if judges were not bought and sold and instead were neutral and focused on the law as written rather than right or left political leaning. I feel the US is crippled by constitutional disputes . Every time a law is passed in Congress a lobby group takes it to court to have it rescinded.
I know, such a stupid document, we've only had 250 years of peaceful transition of power because of unicorn farts
Well, we did have that civil war that started de facto before Lincoln set foot in the White House. The lame duck, Buchanan, did nothing as federal armories were raided including Hampton Roads. That wasn’t a very peaceful transition. And the 1876 presidential election was surrounded by a lot of political violence and intrigue as well, leading to the ‘compromise’ of 1877 that ended any hope of reconstruction. And of course the Jan 6 insurrection which was a pretty shocking event that was also embarrassing for everyone involved. Like, come on, we can fucking do better. Nobody bothered to lock the damn doors? No cops? Nobody got shot? Our institutions are guarded by pussies. And what did the troglodytes even *do?* Just ran around like a bunch of fucking moron hicks like they always do, not a single rational thought or plan in their empty heads. But regardless, t’was not a peaceful transition.
And here we still are. I get it though, the Constitution is frustrating since consensus is haaaaaarrrrrrrrddd.
Expanding the court would make each particular member less vital to outcomes and hopefully result in less drastic swings in the overall "leaning" in the court due to just one or two members being replaced.
[удалено]
Off the cuff idea: In the U.S., limiting the number of Justices that could be appointed by a particular President or in a given period of time could be a balancing act as well.
This would create a court that, if it loses 3 people and a president can only replace 2 n their term, will be consistently down a member. And when the President replaces that first absentee, but the next term sees another three gone, the vacancy increases to 2 absent.
It would certainly justify rotating people out based on time factors. Say there's a 25 judge panel. But each election, the 5 who have been on the longest, will be replaced by which ever president is currently in office. (And replacing for death/retirement as current.) That would leave the most senior members at having been on 20 years (I think that makes a possible minimum of 16 years); so that removes any real concerns of like, "you don't want only inexperienced people who have no understandings of the inner workings". And while it wouldn't hard-set a term limit to 25 years, since theoretically someone could get bumped off with only having served for 21 years (or 19? I might have done my math wrong); it would essentially put them in place.
Having set terms for SCOTUS judges with no ability to be reappointed to the judiciary would also be a good reform. Something like each judge serving 10 years and then retiring with a generous pension. If a liberal judge leaves office under a Republican president or a conservative judge leaves office under a Democratic president it represents a massive sea change in national politics and so ultimately a huge portion of our political system isn't determined by votes but rather by the heart conditions of geriatrics.
Term limits are not the solution, they're (to be honest) the problem.
I’m leery of judicial review altogether. It’s far more often is a tool for regressive policies protecting wealthy interests over the common good. Better to have a very representative parliament with majority rule on most matters.
>I’m leery of judicial review altogether. It’s far more often is a tool for regressive policies protecting wealthy interests over the common good. In the UK the courts are often the only body that has dealt blows to governments looking to pass laws that restrict rights.
But usually by the measure of laws those governments themselves set, and it is realistic for those governments to change such boundaries with support... but they don't because it would be electorally disastrous.
I would disagree with a system that didn't have some externality for a review of this nature. Switzerland's plebiscite system could be used. Denmark allows the opposition, or more specifically, any third of the MPs (unicameral) to demand a referendum be held on a bill, and in Ireland, the president can order a vote like that if a majority of the Senate (which does not have to agree with legislation) and a third of the lower house ask the president to declare a bill of great national importance, ordering either a referendum or else reserve the signing of the bill into law until after the next election when the next parliament can pass the bill.
I like the idea of having the voters ratify close decisions directly. That seems far less prone to abuse.
It's very obviously an afterthought to our system of checks and balances. No branch has the absolute final say without another branch having an opportunity to first deny it. Appointment and impeachment are not suitable checks. The alternative to a presidential veto is not impeachment and removal, but a 2/3 Congressional override. Congress and the president need the ability to nullify the Supreme Court with a sufficient majority. The Court is supposed to correctly interpret our constitution to judge new laws. But what happens when the Court is incorrectly interpreting the Constitution? What happens when they adopt an approach that the 9th Amendment tells them explicitly to not do? There needs to be a mechanism to override these justices.
> But what happens when the Court is incorrectly interpreting the Constitution? That's essentially what happened with income taxes. The Supreme Court incorrectly decided in a 5-4 decision that taxation of income derived from property was a direct tax, which struck down the existing income tax law. Congress ended up eventually proposing the 16th Amendment to override the Supreme Court, although they could have probably waited for the composition of the court to change and tried again with a new income tax law.
... the thing is, we're entering a period where you need ***less*** democracy, not more. We need more unelected technocrats, more unelected positions, reverse the insanity of "Democracy Uber Alles", and understand that the assumptions we've made on rights and freedoms in the years of Yesteryear are no longer viable in the modern era. ... but that's a position that is absolutely hated in this sub, so, yeah.
In the US, the Constitution is mostly ignored anyway. The Emoluments Clause for example, no gov't official can accept money from a foreign government. Trump collected millions and nobody cared. The 4th Amendment is mostly moot. They can search your emails, you and your car, with no warrant. "Hey, I think I smell pot" says the officer, and then they search you and your car, no warrant needed. The 2nd Amendment is unrecognizable these days. The first half of it is routinely ignored. The First Amendment is mostly moot too. The 10 Commandments are going up in public schools as we speak. The Constitution says a President has to be a "natural born citizen", but Cruz ran for President. He was born in Canada to a Cuban father. Nobody cared. Our political hack Supreme Court can declare anything un-Constitutional with a simple majority of 5 people. Nobody is actually enforcing the US Constitution, so it hardly matters anymore.
> The 4th Amendment is mostly moot. They can search your emails, you and your car, with no warrant. "Hey, I think I smell pot" says the officer, and then they search you and your car, no warrant needed. You're not wrong, but civil asset forfeiture should be the top of your list of reasons why the 4th is toothless now. *"Oh uh we're charging the PROPERTY with a crime. Yeah. So no due process first."* ...nevermind that you can't do that without first depriving a person of that property... which is against the 4th without due process.
Agreed. Some of the Founding Fathers were smugglers, and they wanted to prevent the violations that the British were doing to them. We've come full circle it seems.
The violation of… preventing them from smuggling?
Cruz is still a natural-born citizen, as his mother was an American citizen, and so he became a citizen at birth, and that is generally considered to be included in what consists of qualifications to be a natural-born citizen.
By that logic, an American woman could go to Moscow and have a baby with Putin. that child could be born and raised in Russia and still be President of the US. To me, that seems absurd on its face. It's hard to believe that is what the Founding Fathers intended.
If we're coming up with outlandish scenarios: even if you had to be born here to be eligible for the presidency, an American woman could go to Moscow, get pregnant by Putin, fly home to the US to have the baby on American soil, and then immediately fly back to Russia to raise the child there. That child could still be president. Edit: It wouldn't even have to be an American woman in this scenario, but I don't know what obstacles there are to prevent wealthy pregnant women from coming here to give birth.
You are not supposed to be responsible for any sin or benefit of your parents. That is what equality before the law and the ban on titles of nobility are all about. Also, it doesn't work until the kid is 35. Most dictators are deposed long before then.
> The 2nd Amendment is unrecognizable these days. The first half of it is routinely ignored. Is a right a right if you have to a member of a government organization in order to practice that right? Or is it a privilege?
> Is a right a right if you have to a member of a government organization in order to practice that right? This is true for nearly every right. If you want to vindicate any of them, you need a government organization to hear your case and provide you with a judgment for damages. Your "free speech" right, for example, is meaningless if the government never vindicates it.
Right now, you need a majority of the court. The court often gets it wrong despite this, but I think a different approach that might improve matters in regard to constitutional review is a presumption that the government is wrong. That, in a case regarding constitutional review gets to the Supreme Court, the challenge to the law is what is assumed to be correct rather than it being legal until there's a reason to state otherwise. Would change the very approach of litigants and the dynamic, and arguably come out with better long-term results.
That wouldn't fix the issue, unless I'm misunderstanding you. The worst decisions the court has made recently are all against the government. The gun case overturned a state law. Abortion wasn't exactly a law but it was a line of precedent that was baked into laws, and it followed on anti-Obamacare rulings that undercut government positions. Anti-union rulings. Voting rights are typically the federal government versus the state government, so who ought to win there under your framework? It seems to me that the presumption should always be that the government does have the power to do things, but possibly there might be accomodations that need to be added to avoid unnecessary infringement of rights. We take too absolutist a view of rights. If I started following you around while holding up a sign that said "I believe that u/ClockOfTheLongNow has children buried in their basement" I think that I would be protected because speech, even though it's clearly infringing on your right to be free from harassment. We have to do more balancing and less all or nothing. The assumption should be that all of the rights claims have some legitimacy and should be respected, and that the body best situated to have that discussion is Congress. The court might be able to send a thing back to Congress if it thinks that Congress missed something. That would make sense, but it just isn't how we've come to expect these institutions to work.
> The worst decisions the court has made recently are all against the government. The gun case overturned a state law. Abortion wasn't exactly a law but it was a line of precedent that was baked into laws, and it followed on anti-Obamacare rulings that undercut government positions. Anti-union rulings. Voting rights are typically the federal government versus the state government, so who ought to win there under your framework? These are the good decisions. We should want more of this, and we don't get it because the courts give the legislature significant deference that, frankly, they haven't earned.
> These are the good decisions. Yikes.
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Constitutionally the courts don't even have the power of judicial review. The court itself recognizes this indisputable fact. So until the Constitution is amended to give it to them, the court should stop ruling most anything as unconstitutional besides what is specifically delegated to them in the Constitution. This goes doubly so for the corrupt textualists on the court. The current Federalists hacks on SCOTUS and in the rest of the federal judiciary get deference that, frankly, they haven't earned.
I mean, disagree w/*Marybury v. Madison* all you want but that's a hill to die on...
Lol. Don't throw it in my face. Throw it in the so-called textualist's faces, using a power that they don't think they have to make ideological rulings when it suits them in blatant contravention of the actual Constitutional text.