Posted on 08/21/2003 8:33:17 AM PDT by rwfromkansas
Edited on 04/22/2004 12:37:00 AM PDT by Jim Robinson. [history]
But why "personal" arms? I say that the right to keep and bear arms includes land mines and artillery pieces, albeit not nuclear warheads or anthrax, but you don't include artillery and land mines in your reading of the Second like I do.
Yes, I do include artillery and land mines in my reading of the 2nd. I narrowed my scope in my statement so as to ensure that we'd have common ground, but since you agree with me as to the broader scope, even better! You see, the purpose of my statement was to locate what we agree on, not what we disagree on.
The nature of my point was as follows. There exists, as we seem to agree, a certain class of weapons that we can say for sure, for a fact, the 2nd amendment definitely prohibits the federal government from denying our possession of. Whether it has protections beyond that, we may have disagreements over, at least for now. But we still agree on something highly significant. Because even the modest position, that it only protects personal firearms, is at war with what the political and media establishment say it says. They say that it only guarantees states the right to organize militias, and that it does not limit federal power to prohibit "assault weapons" and institute other "reasonable restrictions" on personal firearm ownership.
So my point is, we can know "for a fact" that they are wrong - even though they're not "obviously" wrong, in the strict sense of the word, since many people disagree with us. I use this example to illustrate that regular citizens such as ourselves do indeed have the right and duty, and ability, to definitively conclude that the "powers-that-be" can in fact be objectively wrong about the Constitution. It should also be apparent that if we're able to agree on this with relatively minimal effort, with a little more effort we should be able to resolve our disagreements about the other aspects of the amendment, as well as other amendments, to the point where we know for a fact that our understanding is correct.
I use this example to illustrate that regular citizens such as ourselves do indeed have the right and duty, and ability, to definitively conclude that the "powers-that-be" can in fact be objectively wrong about the Constitution.
Yes, but only in the sorts of cases that I earlier suggested don't really happen very often. If and when the government passes and enforces a law requiring everyone to turn in anything more dangerous than a set of nail clippers, or we find someone advocating same, then we can know "for a fact" that this position contravenes the Constitution. Short of that extreme, everything else is just arguing about what is and isn't permissible, about where we should draw the line - which is, as I said, a political question, not a Constitutional question.
It should also be apparent that if we're able to agree on this with relatively minimal effort, with a little more effort we should be able to resolve our disagreements about the other aspects of the amendment, as well as other amendments, to the point where we know for a fact that our understanding is correct.
Our understanding of these other aspects being "correct" based on what? Not the Constitution - it's silent about the anthrax versus handguns issue. So what standard do we use to judge our correctness? Or are we, instead, seeking a political compromise that satisfies as many people as possible, without claiming reference to an external standard that, as far as I can see, simply does not exist?
No, I'm taking things one step at a time. Slight difference.
Yes, but only in the sorts of cases that I earlier suggested don't really happen very often.
Don't happen very often? Earlier you were saying that they "don't exist in reality". We're making progress ;-)
Our understanding of these other aspects being "correct" based on what?
Based on applying logic. That means giving the ol' noggon a shake, maybe drinking a cup of coffee, to get the motor up and running. To take an example, you said, "The language of the Constitution is pretty clear that we can't forbid all types of weapon in the hands of the citizenry, and common sense tells us that we can't allow all types of weapons to be available to the citizenry." Common sense does indeed say that, but it doesn't say that the federal government should be the one to prevent the most extreme types of weapons from being available to anyone. Furthermore, nothing in the Constitution grants the feds the power to do that in the first place.
So see? With some effort, we can flesh out the meaning more and more.
...where we should draw the line - which is, as I said, a political question, not a Constitutional question.
If you really believe that, then what business do the courts have getting involved at all? If it's a "political" question, then it should be resolved by the political branches.
If a court can't claim to know for a fact that its ruling is correct, then the ruling deserves no respect at all. If they say to me that what I'm doing is in theory illegal, I think I'd be perfectly justified in telling them to get back to me when they've come to an actual conclusion.
Ah, it looks that way now, but my Predict-O-Meter is buzzing furiously and warning me that we're on the verge of traveling full circle ;)
Based on applying logic. That means giving the ol' noggon a shake, maybe drinking a cup of coffee, to get the motor up and running.
Everybody has a logical argument, is the problem - the arguments of Handgun Control, Inc. follow perfectly logically from their premises, if you accept those premises to begin with. They feel that the exchange of less personal freedom for less risk of gun violence is a worthwhile trade-off; you feel that the exchange of more freedom for a greater risk of gun violence is a worthwhile trade. But in either case, it's not a matter of the law or of logic - it's a matter of personal values choices. You value freedom, they value safety, and no logic of yours is going to persuade them to exchange their values for yours. I presume that the same is true for you, because, let's face it - they're right, to a certain extent. It is absolutely undeniable that societies with fewer guns have less gun violence, but that doesn't persuade you because you rightly point out that they have less personal freedom, and you value freedom more than less gun violence.
But these are values choices, as I said, and persuading someone that their values are all fouled up is a damn hard row to hoe. And it's exactly those values that ultimately dictate to one where the line on freedoms should be drawn - not the Constitution, not logic, not reason, but your personal values choices. Certainly, logical arguments abound, but only in service of the values we already hold dear. And if this rhetoric on values choices sounds awfully familiar, it should ;)
Common sense does indeed say that, but it doesn't say that the federal government should be the one to prevent the most extreme types of weapons from being available to anyone. Furthermore, nothing in the Constitution grants the feds the power to do that in the first place.
Fine, but the problem is that nothing in the Constitution explicitly states that anyone has the power to act in service of what we both recognize is common sense. You can, I suppose, point to the Tenth Amendement and claim that it grants the states the power to restrict those freedoms. I can equally well point to the Ninth and say that I have the right to be free of state interference in this matter, and point also to the absolute language of the Second in support of that, so hands off my nuke, Mr. County Sheriff. And then where does that leave us? Back to the 14'th Amendment in the courts, that's where.
If you really believe that, then what business do the courts have getting involved at all? If it's a "political" question, then it should be resolved by the political branches.
Judicial rhetoric aside, the courts have been involved in political issues from the beginning, and they always will be. They like to pretend that they're apolitical, and we like to pretend that we believe them, but let's not delude ourselves into thinking that this is actually the case. The illusion that the courts are apolitical is critical to what legitimacy they have, but it is only an illusion - if it were true that the courts were apolitical, we wouldn't see such nasty political fights over judicial nominations. But it is still a useful illusion - we need some sort of mechanism for dispute resolution, and so we tolerate the pretense of the courts, and, in fact, actively participate in it. Then, when it suits us to pull back the curtain, we accuse the judges who make rulings that we don't like of being improperly mired in politics, and blame them for failing to properly settle disputes that we never should have brought to them in the first place. And since both sides get to do that quite regularly, everybody's happy.
But if you want someone to blame, blame Congress for being all too willing to avoid taking stands on controversial political issues, and punting off to the courts instead. No matter how this issue resolves itself, someone is going to be unhappy about Judge Moore's fate - in fact, a lot of someones are going to be very unhappy. And Congress has absolutely no interest in getting involved in a giant tar-pit of a mess like that, not when they can simply let the courts take the blame for however it works out. Then, the Congressmen from the happy side can praise the impartial administration of the law by the courts, and the unhappy side can accuse the judges of being improperly mired in political concerns, and everyone gets to strike an appropriate public pose for the folks back home. But there is no way they're going to step in and fix it themselves, even though they could. Not a chance. Getting re-elected is much more important to them than any potential long-term benefits that might come about from resolving controversial political issues.
Cynical? You bet. But in your gut, you know it's true...
No, that's not it at all. Yes, of course, I personally prefer the freedom-over-security view, but that has nothing to do with the constitutional argument. When I said "applying logic", I didn't mean logic in an abstract sense; I meant using logic as a tool for getting further meaning out of the words contained in the Constitution.
Let's look at your earlier statement again: "The language of the Constitution is pretty clear that we can't forbid all types of weapon in the hands of the citizenry, and common sense tells us that we can't allow all types of weapons to be available to the citizenry." So in other words, we should follow the language of the document to its fullest unless "common sense" dictates otherwise. So the question we're left with is, Does common sense require the federal government to be the one limiting the possession of extreme weapons? The answer, as I think we can both agree, is no, since the states are competent to legislate in such matters.
Fine, but the problem is that nothing in the Constitution explicitly states that anyone has the power to act in service of what we both recognize is common sense. You can, I suppose, point to the Tenth Amendement and claim that it grants the states the power to restrict those freedoms. I can equally well point to the Ninth and say that I have the right to be free of state interference in this matter, and point also to the absolute language of the Second in support of that, so hands off my nuke, Mr. County Sheriff. And then where does that leave us?
That leaves us with the question of whether the Bill of Rights applies only to the federal government, or to the states. Leaving aside (for the moment) the question of how the 14th amendment impacts upon that question, there neither is nor has been any dispute in legal circles that prior to the 14th amendment, the BOR applied only to the federal government. In short, we know it for a fact.
So then you could say that leaves us with the question of what to do with the 14th amendment - which of course, I'm happy to do if you like, but it would take longer as it's a bit more complicated. But my point here is to illustrate that we can objectively know what the Constitution says, even when doing involves a little bit of work.
Judicial rhetoric aside, the courts have been involved in political issues from the beginning, and they always will be. They like to pretend that they're apolitical, and we like to pretend that we believe them, but let's not delude ourselves into thinking that this is actually the case. The illusion that the courts are apolitical is critical to what legitimacy they have, but it is only an illusion - if it were true that the courts were apolitical, we wouldn't see such nasty political fights over judicial nominations. But it is still a useful illusion - we need some sort of mechanism for dispute resolution, and so we tolerate the pretense of the courts, and, in fact, actively participate in it.
Man, do you see what you're saying here? You're saying that our whole system of justice is based on an illusion, and that therefore Justice Moore is morally obligated, by his Oath, to obey the dictates of the 11th Circuit court. Forgive me if I don't find this convincing. Now I know that the courts often succumb to politicization, but dude, that's not something we should be encouraging! In fact, that's exactly the problem that I and others have been pointing to. The extent to which they allow themselves to be politicized is directly proportional to the extent to which they're neglecting their obligations under the Constitution, and inversely proportional to the respect their rulings deserve.
Based on what? From where in the Constitution do they derive such powers? Why do those supposed powers trump the supposed rights that inhere within the Ninth?
So then you could say that leaves us with the question of what to do with the 14th amendment...
Which is, as I recall, right back where we started. Welcome to the beginning ;)
Man, do you see what you're saying here?
LOL - I finally really shocked you, did I? Yes, I know what I'm saying...
You're saying that our whole system of justice is based on an illusion...
Yes.
...and that therefore Justice Moore is morally obligated, by his Oath, to obey the dictates of the 11th Circuit court.
Yes.
Forgive me if I don't find this convincing.
I don't expect you to, not solely on my say-so. Contemplating such a thing is quite shocking to most people, and the most shocking part of all is that it's completely true. And it is true - the judicial magisteria is an illusion, the same way that the dollar is an illusion. It works because we believe in it. The power of the courts is ultimately an illusion, and one that only exists because we persuade ourselves of the reality of a more fundamental illusion - the illusion that the courts are apolitical.
And that illusion comes about because people think that something magic happens when you put on those black robes - somehow you set aside your personal opinions, your past, your prejudices, your politics, and become a hard-eyed, rational, law-dispensing machine. This is what everyone allows themselves to believe, although not quite in such explicit terms - when I put it in those terms, it sounds exactly as irrational as it actually is. Or is it really irrational to believe in that illusion if it fosters some worthy end? Hmmmm...
Anyway, it's ridiculous, of course - judges are human, and judges always evaluate the law and the facts in terms of their own personal beliefs, and will continue doing so until we replace them with real law-dispensing machines. They can't help it - they're human. And yes, even conservative justices are living, breathing humans underneath the robes, before you ask.
Now, this should not be taken to mean that judges are totally cynical about what they do, and are simply manipulating the law to their own preferred ends - occasionally, you see someone like that, but not very often. Rather, what happens is that the preferred ends find a particular vehicle in one legal theory or another, and that legal theory becomes the thing which all cases are filtered through. But the key is what happens when that legal theory interferes with the preferred ends - that's when the political nature of the courts is briefly revealed, because that legal theory gets tossed right to the side in favor of something that will implement the preferred ends. Essentially, as a practical matter, all judges at every level operate according to the theory that principles are fine, so long as they don't interfere with the desired end result. And when they do, they get dropped faster than a hot rock. You sure didn't see much of a discussion of states rights in Bush v. Gore, did you? Kind of funny for a conservative court that has made states rights an issue of great importance, don't you think? And lest you think that I'm intimating that this is a peculiarly conservative affliction, trust me when I assure you that there are plenty of cases from the other side that are produced in exactly the same manner.
It's not really a matter of encouraging them to be political creatures by saying all this, I have to say - they are political creatures. We're simply recognizing that fact - there's a rather ordinary fellow behind the curtain, despite efforts to pass himself off as the Great and Powerful Oz. You can try to discourage politicization of the courts, but you can't change the fact that judges are human beings with their own ideas about how society should be organized and run.
So what keeps them in check? Why aren't they running wild and implementing whatever political theory or idea pops into their little heads? Because they know that their power is an illusion, based only on the belief among the citizenry that they are apolitical - they can't afford to be obvious or blatant about it, or they'll lose all legitimacy.
And the way they avoid being obvious or blatant about it is by keeping a thumb firmly mashed on the pulse of the people - they track the will of the people and the prevailing political mood of the day very closely. They are, in theory, not supposed to, of course, but the notion that the courts pay no heed to public opinion is out-and-out bullshit, if you will excuse the expression momentarily. Good judges always pay attention to the will of the people, because they cannot afford for a moment to find themselves in serious opposition to it - on the rare occasions when they have, the end result has always been ugly for them or for the country. The first instance was 1793, in Chisholm v Georgia - the result was the 11'th Amendment. The second was in Dred Scott - the result was 600,000 dead Americans and the 14'th Amendment. The third was in 1937, with FDR's New Deal legislation, and the result was an injury that effectively broke the back of the court for two generations and change - it is an injury that the Court is only now beginning to recover from in the last decade or so.
And so what ends up happening, far more often than not, is that, rather than having an imperial judiciary imposing their will on an unwilling citizenry, you get a rubber-stamp judiciary, effectively running around behind society and legitimizing the things the people want. They don't lead society - they can't lead society in any significant manner. Instead, they follow society - the courts are simply not an effective barrier to majoritarianism. They can only afford to oppose the majority within very narrow limits - basically, they can only produce rulings that thwart the majority if they know that the majority will tolerate being thwarted, which is why tracking the will of the people is critical. That's how they can implement those preferred ends, but it's slow and incremental, rather than radical and quick. They can only produce rulings that they know will allow the people to continue to believe in the illusion of their apolitical nature. Once they cross the line and become explicitly political, it's all over for them. Andrew Jackson stopped believing in the magic. Look what happened to the court's power then - they had none.
It's all an illusion, though - it's smoke and mirrors. There is no Santa Claus. Unlike the illusion of Santa Claus, though, this has rather more long-term utility to us - it fosters a system of dispute resolution that we can all accept, and we need that as a functioning society. And the realization that judicial power is an illusion is the most effective check upon them that can ever exist, far more so than Congress or the states or whatever. Win the hearts and minds of your fellow citizens, and the courts will always follow. Always.
And if you still don't believe me, I'll simply leave you with some history to chew on for a bit. In the early 1970's, the Supreme Court produced Roe v. Wade and a series of attendant rulings that created a rather expansive right to abortions. Then, beginning in the early 1980's, there were a series of ruling that served to narrow access to abortion, by addressing how, when, where abortions may be performed, not to mention who should pay for them.
In the middle 1950's, the Court produced Brown v. Board, and followed with a series of attendant rulings, all of which mandated the end of state-sponsored segregation in education. The lower courts took that ball and began dealing with the issue of segregation in a host of cities and states around the nation, continuing on until the middle of the 1970's. Then, in the late 1970's and early 1980's, the Supreme Court began producing a series of rulings that served to cut back on efforts to desegregate schools, by narrowing the conditions for action and the range of solutions available.
Why?
What changed? Why did the courts travel in one direction, only to backtrack later on?
The facile answer is, of course, that the courts grew more conservative in the interim. But that overlooks the deeper truth that is at work here - the reason the courts changed is because the country grew more conservative in the interim. By the late 1970's and early 1980's, those earlier rulings were about to begin producing dangerous amounts of grumbling among the citizenry, and that is the one thing that the courts absolutely cannot afford. Those early rulings had to be tweaked in order to bring them back in line with the people, in order to bring them back into that narrow range of action that the people will tolerate from the courts. And so they were.
Hearts and minds. That's where the real battle is, not in the courthouses....
You mean, from where in the Constitution do the states derive such powers? Is that a serious question? I'd expect better from someone of your caliber.
LOL - I finally really shocked you, did I?
Move over, Howard Stern ;-)
And it is true - the judicial magisteria is an illusion, the same way that the dollar is an illusion.
I don't agree with that analogy. The dollar (at least when we have sound currency - don't get me started on that) is more like the law - a fixed standard of reference. A politicized judge is anything but.
And the way they avoid being obvious or blatant about it is by keeping a thumb firmly mashed on the pulse of the people - they track the will of the people and the prevailing political mood of the day very closely.
And you consider this a healthy system? If the only reason we needed a constitution was to protect against blatant usurpations, then we could just as easily do without it completely, since the people will always resist overt attempts on their liberties. The purpose of the Constitution is precisely to protect against the little unnoticeable (or even not-so-little but off-the-radar-screen) usurpations that accumulate over time. That's exactly why the Constitution must be understood as a fixed standard if there's to be any point to it at all.
They don't lead society - they can't lead society in any significant manner.
Wrong, completely wrong. If they followed society, then there'd be little need for them to strike down state laws that liberals don't like (especially ballot questions!), since the people would have already struck them down through the democratic process. It's precisely because liberals can't prevail in democratic persuasion that they turn to courts to enact their agenda.
Tell me, do you think "the people" are really all that offended by Moore's monument? Do you think "the people" wanted to maintain racial preferences at the University of Michigan? Most especially, do you think "the people" would ever have approved of, let alone demanded, using Eurotrash socialistic hogwash as a basis for a SCOTUS ruling?
Why did the courts travel in one direction, only to backtrack later on? The facile answer is, of course, that the courts grew more conservative in the interim. But that overlooks the deeper truth that is at work here - the reason the courts changed is because the country grew more conservative in the interim. By the late 1970's and early 1980's, those earlier rulings were about to begin producing dangerous amounts of grumbling among the citizenry, and that is the one thing that the courts absolutely cannot afford. Those early rulings had to be tweaked in order to bring them back in line with the people, in order to bring them back into that narrow range of action that the people will tolerate from the courts. And so they were.
That's all very touching, but the fact remains that despite their apparent shift to the right, they're still getting more and more brazen with their power. Witness what I referred to above, the citation of foreign law as a basis for rulings. Even Anthony Kennedy is now a convert to that new way of thinking. And in fact, even Clarence Thomas accompanied Kennedy and a couple of other justices abroad for a conference with European judges, although we don't know as of yet what his opinion of this whole mess is. Your characterization earlier in the post is much more accurate: "That's how they can implement those preferred ends, but it's slow and incremental, rather than radical and quick." Exactly right, and exactly the problem.
It's a serious question. With a point to it ;)
And you consider this a healthy system?
"Healthy" or "unhealthy" doesn't enter into it - it is. And will continue to be.
If the only reason we needed a constitution was to protect against blatant usurpations, then we could just as easily do without it completely, since the people will always resist overt attempts on their liberties.
More or less. The Constitution has as much or as little value as the people assign to it, pretty much just like the courts. This is why I said before that "fixed meaning" was worthless if you can't find anyone to agree with you - we may both agree that the Second Amendment has a particular fixed meaning, but if the day comes that the people of the United States decide that the Second Amendment is a meaningless nullity, you and I will be out of luck, fixed meaning or no.
Wrong, completely wrong. If they followed society, then there'd be little need for them to strike down state laws that liberals don't like (especially ballot questions!), since the people would have already struck them down through the democratic process.
You're missing the point - they still have a narrow area within which they can range. They don't track the polls perfectly, but they don't stray very far either.
Tell me, do you think "the people" are really all that offended by Moore's monument? Do you think "the people" wanted to maintain racial preferences at the University of Michigan? Most especially, do you think "the people" would ever have approved of, let alone demanded, using Eurotrash socialistic hogwash as a basis for a SCOTUS ruling?
It's not about what the people like - it's about what they will tolerate. And they have, are, and will continue to tolerate all those things, as far as I can see. Tell me, do you really think that the courts would have produced such rulings if they thought they were going to spark rioting in the streets? If they thought they were going to produce a serious effort to amend the Constitution? Not on your life, my friend. Whether the people like or want what the courts have done is simply irrelevant - the point is that they will tolerate it, and the courts know that. Someday the people may not tolerate such rulings, and then they will simply blow away like smoke in the wind - I guarantee it.
That's all very touching, but the fact remains that despite their apparent shift to the right, they're still getting more and more brazen with their power.
And they will continue to do so, for exactly as long as the people tolerate it, for exactly as long as the people let them. They can hardly afford to do otherwise. And that's a fact.
I have a feeling you know the answer already, but I'll be a good sport. States don't derive their powers from the federal constitution. They derive them from their own constitutions.
"Healthy" or "unhealthy" doesn't enter into it
Sure it does. You've been saying in your previous pests that this system you're describing is a good thing.
The Constitution has as much or as little value as the people assign to it, pretty much just like the courts. This is why I said before that "fixed meaning" was worthless if you can't find anyone to agree with you - we may both agree that the Second Amendment has a particular fixed meaning, but if the day comes that the people of the United States decide that the Second Amendment is a meaningless nullity, you and I will be out of luck, fixed meaning or no.
If that's true, then the Constitution is useless. But it's not true, because words have meaning, the words on the Constitution don't move around (unless you take a good whiff of that hemp paper it's written on, but I digress), so it's possible for people - at least enough people within a given population - to look at it and objectively work out the correct meaning. The reason this doesn't happen is that they've relinquished that responsibility to the courts. And that's precisely because of the illusion that you so correctly pointed out, but seem so disturbingly unconcerned about.
You're missing the point - they still have a narrow area within which they can range. They don't track the polls perfectly, but they don't stray very far either.
I'm not missing the pont at all. It's one thing to say that courts are restrained by public opinion (and to a large extent that's true), but something completely different for you to say that they don't lead society and in fact follow society. They very much do lead society, even if they are a bit - judicious - about it.
[they're still getting more and more brazen with their power.]
And they will continue to do so, for exactly as long as the people tolerate it, for exactly as long as the people let them. They can hardly afford to do otherwise.
Of course they can afford to do otherwise. They don't have to keep grabbing more power for themselves. They do it because they can. And you're right, people continue to let them, and that's the problem. As for changing hearts and minds, that's what I've been trying to do with you right here.
Understanding it provides us with an understanding of how the courts work and how they can be checked, and surely this is an objectively good thing. Beyond that, making judgments about the inherent goodness of the system itself is meaningless. Much like your guns, the system is neither good nor bad in and of itself - it's either useful or not useful, but it is the uses to which it is put that determine whether having it is a good thing or a bad thing. If you want to drag value judgments out of me, I will oblige and tell you that the illusion is good insofar as it lets the courts effectively do the things that society truly requires of them, and bad insofar as it lets the courts do all sorts of extraneous things on top of those basic responsibilities.
If that's true, then the Constitution is useless.
Not at all - what I am saying is that if we all stop agreeing to abide by it, then it becomes useless. So long as it serves a function for us, it is useful. The fact that words have meaning doesn't accomplish anything unless there are real flesh-and-blood people who breathe life into them. Check out the Soviet Constitution some time, if you need an illustration - it's just chock-full of rights and freedoms for the workers, but the fact that those words have a true meaning didn't help them very much. And the same thing is possible here as well - you may very well have an objective right to own a gun, but if none of your neighbors agree to respect that right, you're going to have to either move, give up your guns, or wait for them to be pried from your cold, dead hands. Your rights have practical value only insofar as we all agree that they exist and insofar as we all agree to respect them.
The reason this doesn't happen is that they've relinquished that responsibility to the courts. And that's precisely because of the illusion that you so correctly pointed out, but seem so disturbingly unconcerned about.
You can be as concerned as you like about the weather, but that doesn't change the fact that it's raining. But you are quite right about the first part, though - We The People have abdicated our responsibilities, and by extension, so have our spineless representatives. But nature abhors a vacuum, and those responsibilities have to be exercised by someone. So the courts have obligingly filled in for us. And now we want to blame them for the state of the nation. Priceless, isn't it? In the immortal words of William Shatner, "Irony can be pretty ironic sometimes" ;)
It's one thing to say that courts are restrained by public opinion (and to a large extent that's true), but something completely different for you to say that they don't lead society and in fact follow society. They very much do lead society, even if they are a bit - judicious - about it.
The devil is in the details, and the details are actually a bit more complicated than what either of us have yet outlined. I think it's probably accurate to say that what the courts tend to do is, with their preferred ends in mind, gauge public opinion, and introduce things as they think they can. It's not entirely accurate to say that they lead society, and it's not entirely accurate to say that they follow it - what they do is more or less sit back and watch, and dole out new things as they judge that society is ready to accept them. Sometimes that's in service of an incremental movement towards wholesale new changes, and sometimes that's in service of an incremental movement to change things back to the way they used to be. But either way, they haven't got the power or the legitimacy to really force unwanted medicines on the body politic.
Of course they can afford to do otherwise. They don't have to keep grabbing more power for themselves. They do it because they can.
Sorry, I should have been more clear - what I meant was that they can't afford to keep going once the people stop. But they will keep going until then - it's the nature of the beast. The state never shrinks, and never voluntarily gives up power - it only grows. We're supposed to know that - Thomas Hobbes knew it, 350 years ago - and take steps to prevent it, but so far, we haven't. And in the end, whose fault is that?
Which is what I and others are trying to do here. Would you care to join us?
The People have abdicated our responsibilities, and by extension, so have our spineless representatives. But nature abhors a vacuum, and those responsibilities have to be exercised by someone. So the courts have obligingly filled in for us. And now we want to blame them for the state of the nation.
You're forcing me to have to be blunt. Part of what I'm "blaming" is the attitude that you've exhibited, namely that there can be no such thing as an objectively knowable meaning to the Constitution. Many people have allowed themselves to accept that as well, and therein lies the abdication that you've referred to. There's a way out, as I've been trying to show you.
Sometimes that's in service of an incremental movement towards wholesale new changes, and sometimes that's in service of an incremental movement to change things back to the way they used to be.
I see no evidence of the latter, other than purely token sops like United States vs. Lopez that have no effect on anything.
By the way, you said there was a point to your question regarding where states obtain plenary powers to legislate in various types of matters. Did I give you the answer you were looking for?
We all serve, in our own way ;)
Part of what I'm "blaming" is the attitude that you've exhibited, namely that there can be no such thing as an objectively knowable meaning to the Constitution. Many people have allowed themselves to accept that as well, and therein lies the abdication that you've referred to.
Ah, except that I'm not saying that. What I am saying is that this objectively knowable meaning of the Constitution will always take a back seat to what people believe the meaning of the Constitution is. By all means, expound upon the objective meaning until you are blue in the face. But at the end of the day, simply having the objective meaning is not enough - you have to persuade people about that objective meaning. And I think that's a much more difficult task than you admit to.
But I am a pragmatist by nature - if it turns out that pursuing the "objective meaning" angle best achieves our common goals, I'm right there beside you. At the moment, I don't think it does, so I prefer the "let's do it this way, and you'll have a better life as a result" approach. As nice as it would be if people voted with their heads, as you advocate, the reality is that a great many of them vote with their stomachs, and so I appeal to the stomach as best I can, by showing the good things that will come about from some particular change, rather than selling right-thinking as an end unto itself. And as long as we both get from "A" to "B", who really cares if we take different paths to get there?
I see no evidence of the latter, other than purely token sops like United States vs. Lopez that have no effect on anything.
Patience. Lopez is a big deal if you look at it in historical context. Remember what happened in 1937, and how I said that the Court was only now beginning to recover? The law has a long, long memory, and things like that are not easily forgotten by judges, nor should they be.
By the way, you said there was a point to your question regarding where states obtain plenary powers to legislate in various types of matters. Did I give you the answer you were looking for?
In a manner of speaking. By way of a followup, why does a state constitution's grant of plenary power trump the federal constitution's guarantee of certain unenumerated rights? What exactly are those unenumerated rights?
Ah, except that I'm not saying that.
General_re at #1195: "I dispute right off the bat this contention that there is any way of knowing 'for a fact' that something is Constitutional or not, other than in the sorts of law-school hypotheticals where the law is literally antonymous to the Constitution - the sorts of hypothetical cases that don't actually exist in reality, IOW"
And again at #1197: "what is the practical value of a fixed meaning if it is essentially unknowable?"
Do you renounce these statements? If not, then you are "saying that."
But at the end of the day, simply having the objective meaning is not enough - you have to persuade people about that objective meaning. And I think that's a much more difficult task than you admit to.
Apparently it's a more difficult task than you say I admit to, but in fact I haven't made any statements regarding the difficulty. I only say that it's necessary. But in any case, you're right that I have to persuade people about that objective meaning, and I'm attempting to start with you. But that first involves getting you to understand that there is such a thing as an objectively knowable meaning to the Constitution, since you're "not saying" that there isn't, it looks like we can finally begin!
By way of a followup, why does a state constitution's grant of plenary power trump the federal constitution's guarantee of certain unenumerated rights? What exactly are those unenumerated rights?
It's important for the sake of clarity for me to make the distinction between the pre-1868 Constitution and the post-1868 version. Even though we appear to be living in the post-1868 era, I don't think we can do justice to the present version without first looking at the original.
Under the original Constitution, the Bill of Rights applied only to the federal government. There's no controversy surrounding that fact. So whether you're talking about enumerated or unenumerated rights, the states were at liberty (as far as federal law was concerned) to define the full extent of them for themselves. Thus, the 2nd amendment could easily be read as a comprehensive ban on all federal laws tending to disarm citizens of any type of weapons, as the states would still be able to curtail private possession of the most dangerous types.
you're quite right.
thank God for Jefferson, Franklin, Adams, and the like.
i'll thank any god you show me that we traded the authoritarian repression of new england puritanism for the enlightenment liberalism of locke and jefferson (though there always seem to be a few hold outs).
but perhaps you were just being facetious.
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