Comment by deep_concern
6 days ago
If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
6 days ago
If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
Kavanaugh's dissent is kinda hilarious in this context.
> The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.
This, of course, doesn't include machine guns.
I've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case.
The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.
The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
What on earth do you mean? The practical way is the same as it always was: subsequent amendment. The fact that it requires consensus is a feature.
This reads the same way as people who say things like “we just have to accept that Congress is broken and can’t pass new legislation.” Like hell we do!
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>The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791.
Redcoats in your home, comparing notes with all the other redcoats who live in your buddies house and hassle your bartender, watch the comings and goings of everyone else around town, etc, etc.
> The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
Of course there is, it is just being done - the constitution is being rewritten out right now by supreme court. All you need is a majority on a 9 person commission.
>The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
Given that this isn't an issue in any other modern democracy, I'd say "bug."
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Well it's a feature in that the ratification rules were part of an intentional illicit rewrite of the constitution. We could make it easier to modify like other nations, but that also makes it easier to repeal.
I think the fix is to require more political parties to be involved, so a 51% majority of a single party can't remove federal laws whenever they have a majority. Then you wouldn't need an amendment to solve controversial problems.
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Radio, TV, cameras
That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.
And then there's Puckle's gun.
The Gatling gun also predates any widespread gun control.
Notably, the Gatling gun is still legal almost everywhere, including California (lulz!).
If that is legal, what is the actual point of 99% if the rest of the bans, etc?
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Fully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.
No. While originalists and textualists purport to refuse to extend any principle into the modern day ("no right to privacy in 3A, 4A, etc"), one they do is that 2A doesn't merely apply to arms of the day, but also to modern arms. It's... pretty blatant.
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Humans are rationalizing animals, not rational ones.
Machine guns are illegal in the US. SCOTUS has never ruled there is an individual right to own machine guns.
Yes, that's precisely the point.
The textualists turn out not to be so textualist when they feel like it.
How doesn’t include machine guns?
Keep reading!
> In Second Amendment cases, this Court applies the Amendment to semi-automatic handguns even though those did not exist in 1791 or 1868.
"Shall not be infringed" apparently applies to unimaginably better weaponry, but they couldn't have anticipated immigrants being pregnant.
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It's not so clear cut to me (looking from outside).
It makes sense to interpret some cases in historical context and others not, because some cases are not as much affected by the difference in context.
That's not being machiavellian - that's avoiding an one size fits all approach.
This is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.
There's a difference between textualist and originalist. There isn't a dichotomy between textualist and living-constitutionalist frameworks only but the two former may overlap. Also the same reasoning you are using applies to people who are living-constitutionalists and suddenly become textualists.
https://pacificlegal.org/originalism-vs-textualism-vs-living...
My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
You misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists.
By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM:
>If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible?
An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is.
And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
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A reasonable initial place to draw the line might be "owns slaves".
Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.
We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?
Well, the same white men created Jim Crow and seggregation.
If you were a black man would you have been disenfranchised when those laws were in force?
I'd say yes.
The fact that it was/is worse elsewhere, e.g. in some places in Asia, doesn't make the critique (of how white Constitutional/law makers historically disenfranchised certain demographics in the US) invalid.
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Those rights came to exist in the west in response to kings and tyrants doing whatever they wanted at the expense of their subjects. Also because communities sometimes do bad things to people not able to simply drive away. Pretty sure Asia has had it's share of human rights abuses.
You seem to lack an understanding of technical legal terms in US courts, which is frankly pretty usual even for US citizens.
"Franchise" is the right to vote. Disenfranchisement is legal prohibition against voting. Social behaviors have nothing to do with it.
"Jus soli" is a legal term in English, defined by the chief authority (Black's Dictionary of Legal Terms) as rights achieved by one's place of birth (instead of by one's parentage).
Diplomats are only partially subject to civil law as you have claimed. There is also no practical leverage available to the courts if their funds are not stored in places subject to US jurisdiction. So, a minor backing for your claim, but one that is not in practice applied, nor considered relevant by precedent in regards to the XIVth.
I'm sorry you're being attacked so vociferously in this thread, as you are arguing in good faith with the knowledge you have, but your knowledge base is insufficient for the confidence you show.
No, and politely, wtf is that logic?
You are disenfranchised when your judicial branch interprets law in a way that disproportionately benefits only the people who are most similar to the authors.
Also, how wealthy are you? Why did you bring up your race instead of how much land you own? Why pull the culture war into this? Certain interpretations of the constitution disproportionately benefit people who own a lot of land.
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You don't have to be a constitutional scholar to see it's bullshit.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
"absent a constitutional amendment"
Who did that?
"strict textualist" bro the 14th amendment is not vague