March 15, 2007

"An ambiguously worded political compromise written hundreds and hundreds of years ago."

That's Matt Yglesias on the U.S. Constitution. Hundreds and hundreds? It would have to be at least 400 years old to justify "hundreds and hundreds."

45 comments:

Simon said...

I guess we can strike Matt Yglesias off the list of people to take seriously. Look between the lines, to the sentiment behind such words... I don't know what you can do with someone who speaks so carelessly, with such transparent disdain for the idea that the Constitution might have some particular meaning, rather than representing some talismanic invocation of general principle.

pablo H said...

How does Matt differ from Earl Warren (let us all bow our heads)?

Y'know those old guys in powdered wigs, hey, what did they know? We need a 21st century constitution gor people who drive cars - and not horse and buggies.

Wait, if we're just going to just make it up as we go along, and not care about what's in the actual constitution, why do we need a bunch of Ivy league lawyers on the SCOTUS to tell what's constitional?

Oh, sorry. Forget that. That's Nazi-speak. Worst than Nazi, its something Ann Coulter might say- that witch.

Joseph Hovsep said...

Simon, that's not what he's saying. "Hundreds and hundreds" was obviously wrong, but he's arguing that we really need a new constitutional convention, not that we should disregard the one we have.

Maxine Weiss said...

Barbara Tuchman:

"For all their flaws and quarrels, the Founding Fathers have rightfully been called by Arthur M. Schlesinger, Sr., ""the most remarkable generation of public men in the history of the United States or perhaps of any other nation."" It is worth nothing the qualities this historian ascribes to them: they were fearless, high-principled, deeply versed in ancient and modern political thought, astute and pragmatic, unafraid of experiment, and --this is significant--"convinced of man's power to improve his condition through the use of intelligence""---Barbara Tuchman,

(But Yglesias knows far more than Tuchman or Art Schlesinger Sr.) !!!

Tuchman: "Not before or since has so much careful and reasonable thinking been invested in the formation of a governmental system. In French, Russian and Chinese revolutions, too much class hatred and bloodshed were involved to allow for fair results or permanent constitutions. For two centuries, the American arrangement has always managed to right itself under pressure without discarding the system and trying another after evey crisis, as have Ital and Germany, France and Spain."--Barbara Tuchman

(But who cares, since that Yglesias is so much smarter than even the Founding Fathers!)

Peace, Maxine

reality check said...

I don't know what you can do with someone who speaks so carelessly, with such transparent disdain for the idea that the Constitution might have some particular meaning, rather than representing some talismanic invocation of general principle.

Sez Mr. Torture and Mr. Unitard Executard. LOL! ROTFL!

Well played Simon!

reality check said...

You guys are so braindead.

Yglesias was: a) being ironic, and b) raising exactly your point, what are the virtues of the hundreds of years ambiguous text versus what we might want to put down precisely in black and white pixels in a modern contract.

Maxine, you're the funny one, I am disappointed in you.

Internet Ronin said...

A new constitutional convention is a frightening thought. About half of our civil rights today would go out the window. A "Lose, Lose" proposition if ever I heard one.

Face it, most people will happily exchange liberty for a false sense of security. I am astonished that RC and Joseph appear to think this might be a good idea. Be careful what you wish for, you just might get it and I can virtually guarantee you will not like the results. Nor will I.

(Aside to Joseph: You are dreaming if you think gay rights would be enshrined in a newly written constitution. They won't. They'll be dumped overboard so fast your head will be spinning for months afterwards. Tossed aside in the spirit of "compromise" of course.)

reality check said...

Larn to reyd dumass! I never sed I thod id wuz u gud idir!!!

Internet Ronin said...

Well, excuuuuuuuuuuse me!

Maxine Weiss said...

The best chance for a Constitutional Convention would have been in 1982 when the Equal Rights Amendment was on the table.

And things weren't nearly as polarized and divisive back then. Yet, thay still couldn't get 38 States to agree to it.

Peace, Maxine

Jim M. said...

I think the response here is a little overblown to a pretty short (and possibly flippant) comment.

1) The constitution is unquestionably a political compromise, both among framing generations, but between framing generations. That doesn't make it bad. Compromise doesn't have to mean compromise of principles.

2) Of course the constitution is ambiguously worded. You can think it has a definite meaning, which I do, and still acknowledge that for cultural reasons its wording is not the most laser-fine. You can even think those cultural reasons are better than the ideas we have now.

3) In response to Yglesias, of course we wouldn't write the second amendment that way, even if we wanted it to mean the exact thing. But that reflects where we are culturally, and what our notions of natural and positive law is now.

4) In response to the collective reading not making sense now, but the individual rights reading being problematic, I think the cause for that is pretty well explained with the thesis that the 14th amendment changed the bill of rights and the way we think of them without its framers fully contemplating the degree of change they were imposing.

Seven Machos said...

I love it when people say that things didn't used to be so polarized. Come on, Maxine: polarization is politics.

There's more writing about it now, because Eric Alterman's beloved gatekeepers have lost so much of their power, but there is just as much polarization. If you think people didn't hate Ronald Reagan with utter and complete vitriol in 1982, you either weren't paying attention or, more likely, you are looking at the past with a feeling of sweet but false nostalgia.

Joe said...

While the US Constitution isn't a perfect document and has its share of problems, its still better than what every other country on this earth has and were it to be rewritten, I am quite confident that the result would be a nightmare.

(The "wise" men of our courts have managed to make a shambles of it, imagine the harm done by the rest of the tinkerers.)

On the other hand, what if we convened a constitutional convention with the mandate that they could add, remove and/or change only 50 words. (I, for one, would make the commerce clause more narrow, strengthen the first ammendment, make the second less ambiguous, eliminate election of Senators, add term limits to senators, congressmen and judges (all appointed posts.))

The Exalted said...

for once, i agree with seven. the tendency to proclaim present conditions to be "unprecedented" or "so much worse than before" is pretty grating

XWL said...

Please stop all the bickering, you're making President Reagan cry (and most likely the Baby Jesus, too)!

(at least according to Time and through the magic of photoshop)

If we must have a new Constitution, here's the 13 folks I modestly propose to draft it.

chuck b. said...

I wish your blog photo was animated. A loop of you going "RrraaawwrRR!"

Maxine Weiss said...

(Joke/Mock letter)

"Dear God: Why did you let the children die at Littleton?

Signed, a Concerned Parent."


"Dear parent: I’m not allowed in public schools anymore.

Signed, God."

Cedarford said...

Matt Yglesias is correct about ambiguous wording. But if some editor went back and said the ambiguous wording of the 2nd Amendment was a huge problem and must be clarified and footnoted, the Drafters would have probably come up with:

A well regulated militia being necessary, [among other indispensible reasons], the right of the People to keep and bear arms shall not be infringed.

Footnote: The indispensible other reasons are so obvious that we did not include them. We recognize that firearms are absolutely necessary for home defense against criminals or marauding Redskins. That no state or landlord can take away that right to self-defense of even a tenant, and that no state will accept the responsibility and liability to be in charge of defending the People made defenseless. Aside from self defense, the need for arms for rural Americans to put meat on their table and the need for farmers to eliminate predators and vermin affecting themselves and their livestock is so obvious we thought it didn't have to be mentioned. As for what arms themselves are, maybe as the editor said, we could be clearer, while we definitely limited fearsome modern weapons like the warship to something no private citizen or State could keep and bear...we absolutely had no intent to overturn ordinances barring private citizens from storing explosives in their homes other than very small amounts necessary for ammunition-making, nor have we any intent on repealing state and town laws against those who wish to store poisons and contagion-afflicted articles and livestock that threatens others. Finally, as Misters Washington, Jefferson, Adams, and Madison have made clear, we hold the right to have arms is useful restraint against tyrranical government..even one armed with better weapons prohibited to the people, like warships, for the price they would pay in attempting to subjugate the people in every town, on every street would be too high for a Tyran and the tyrants followers to bear.

Handguns were definitely part of the arms a militia and home defender back then had access to buy and use, as well as shotguns, rifles, and edged instruments.

But canons - that shot cannister as well as round shot and could inflict mass casualties like a modern machine gun can, were not an individual item. They were common purchase and only used by organized militias and armies. Any explosive, poison, and disease bearing substance that could menace the community was not allowed...nor did the Founders petition to overturn existing laws barring those items on returning home to their states.

==========================

Joe - While the US Constitution isn't a perfect document and has its share of problems, its still better than what every other country on this earth has and were it to be rewritten, I am quite confident that the result would be a nightmare.

The claim of Constitution as the best document any nation has is a little jingoism, sort of like "our cars are the best in the world", and "the educational system here is second to none", and "the American worker can out-compete any on the planet in making anything."

The Constitution is an operating manual for a nation. 225 years ago, the newest and the best. Still good for a long time outside the failures of it that led to the Civil War and the present population equivalent of 3.5 million people killed and 3 trillion wiped from the economy.

But as the world rapidly progresses, other nations fix their equivalent of blunders or antiquated sections of their Constitutions...America is becoming an ossified nation unable to keep up with a changing world, with paralyzed and failing systems other nations don't have. The Amending process is broken, so major flaws in the national operating manual can no longer be fixed (if you count the lowering of the vote to 18 as a simple expansion of an existing right, the last Amendment of any consequence able to get through was the 1962 dropping of the poll tax).

The present "fix" of trying to patch it up by agency of a High Priesthood of lawyers in robes divining hidden intent hasn't worked well, dividing American society even further. Just as the Constitution is not the Sacred Parchment whispered to the Founders by Jesus and so perfect it should never be altered as claimed by the "Venerator" faction - Reliance on a lifetime unaccountable "Priesthood" now selected by partisan agenda - is also utter bunk.

I like Joes suggestion of a limit whenever crisis finally forces us to fix the tattered, antiquated operating manual the "Holy Founders" hashed out as a great old thing back in the day of powdered wigs. Limit 50 words. Or elimination or clarification of only 10 great flaws. Like "lifetime appointments", "birthright citizenship to children of invading illegals", "President does X in War, Congress does Y", Plus the commerce clause narrowed, a clause that says if it isn't in the Constitution, activist judges can't pull it out of their ass and call it a reflection of an emenation of an unwritten penumbra - it's only a turd..

Bruce Hayden said...

What a lot of people around the world either love and/or hate about America is our exceptionalism, and I think that a lot of that stems from this "ambiguously worded political compromise written hundreds... of years ago". I would add the Declaration of Independence in there too as part of the basis for our national character.

What is really surprising is how good it turned out to be. Seven thinks that maybe we should rein in the Commerce Clause and make the 2nd Amdt. more explicit (and I agree with him). Overall though, it has worked exceedingly well for over 200 years now. Yes, we could tweak it a bit on the margins, but most of us aren't willing to risk screwing up the whole balance thing, and so we will leave it pretty much as it is and has been for so long.

What is fascinating to me is that even when other countries try to copy us, they never seem to get it right. It is like my chemistry lab partner in HS who would copy off my tests, and still get Ds, while I would get As on the tests that he copied from.

Bruce Hayden said...

If I were to add one thing to the Constitution, it would be to impose term limits on Senators, Representatives, and federal judges. We have them for president and VP, and we have them here in Colorado for almost everything, and they work wonders. For one thing, they seem to eliminate a lot of the corruption that seems to accompany life tenure, esp. for those "elected" to office.

John Kindley said...

If I were to add one thing to the Constitution, it would be the following (suggested to me by the inadequacy of the recent proposal by the Republican Study Committee for an "American Taxpayer Bill of Rights"):

The most fundamental, natural taxpayer right is the right to not pay any tax on those fruits of one's labor that are needed to establish and maintain a decent and reasonably secure life. More concretely, I'd suggest that no one should have to pay any income tax on their earnings up to the median (or better yet mean) U.S. household income.

To those who'd counter that the entire tax burden should not fall on the richest half of the population and that the poorer half of the population should pay something for government, I'd respond that moderate consumption taxes on the non-necessaries of life would be a reasonable way to tax the poorer and the richer alike (with "necessaries of life" construed more broadly than mere bare subsistence, to include food, medical care, and housing costs up to an amount correlated to the average home price in the U.S.).

I'd also point out Thomas Paine's proposal in Agrarian Justice to pay every citizen upon attaining the age of 21, as a matter of justice rather than charity, a certain lump-sum (a modern version of this proposal, The Stakeholder Society, suggests the sum of $80k) as compensation for the loss, caused by the cultivation of land and consequent system of land ownership, of every person's natural birthright to joint proprietorship in the earth (as would have been enjoyed in the natural state and as in fact enjoyed by Native Americans and frontiersmen for much of our history and pre-history). If we're not comfortable with the idea of government making such cash payments, we can at least recognize the natural justice of the principle involved and recognize that no person should pay any tax on their efforts to achieve a reasonable measure of middle-class financial independence and security.

The reason such recognition of this particular natural right should rise to the level of a Constitutional Amendment arises from another serious glitch in the Constitution as it works out in modern society -- democracy in the U.S. is wholly broken and does not represent the interests of "the People" but rather the interests of those relatively few people with the wherewithal to contribute substantially to outrageously expensive political campaigns. They set the agenda and pre-qualify the candidates, so that certain policy proposals that would have broad appeal among the American public (presumably including legal recognition of the natural right I've just highlighted) never even make it onto the table. Since the wealthy control the government and benefit from it disproportionately, makes sense that they should pay for it. (And they can decide, as they do already, how much government they want to pay for, and whether it should be paid for with inheritance taxes, or by taxing income over the median, or by whatever other method does not infringe on this natural taxpayer right.) Moreover, recognition of this right would over time go a long way towards mitigating the very disparities in wealth that are now making our "democracy" unrepresentative.

Seven Machos said...

Thinking this through, who would be invited to a Constitutional Convention. It certainly wouldn't be Yglesias. Wouldn't it be -- oh, gosh, I don't know -- the 535 people we elected to be our representatives? And maybe the legislators we put in the state leigslatures?

And couldn't they rewrite the Constitution tomorrow if just two out of every three of the members of Congress could agree and just three out of every four of the state legislatures could agree?

N.B.: There is one change they couldn't make. Do you know what it is? This is a total softball...

hdhouse said...

The constitution is fine. Ambiguity is fine as it permits debate and evolution albeit incremental but that is fine too. Don't you think that is what they had in mind? It is a guiding document not stereo instructions.

If it were the later wouldn't the second amendment in the example include the word "OWN"? Otherwise, I am perfectly correct to conclude that in times of the state militia the individual citizen can bear (carry) arms and absent a central repository (remembering the rural nature of much of America at the time) they can keep these militia arms at home for speed of assembly.

Now to me that is a logical reading...obviously not to the gun nuts...and the constitution permits the debate.

Fortunately or unfortunately if this constitutional re-write congress were formed in the current landscape, would I head north if 7Nachos and SimpleSimon types were there and had a voice? You betcha. I'm sure they would welcome my voice as I am that of reason. But, amazingly, some might not.

Simon said...

HDhouse, you're an idiot.

Jim, the Fourteenth Amendment didn't change the Bill of Rights as it applies against the federal government (unless you're referring to the so-called "equal protection component" that Bolling read into the Fifth Amendment). It made most of it (or, if you're joining me in the Hugo Black "jot for jot," P&I camp, all of it) applicable against the states.

George said...

I like the last sentence of Yglesias's post:

"Obviously, if you were going to start over from scratch nobody would write it that way."

Obviously!

MadisonMan said...

Yglesias was: a) being ironic, and b) raising exactly your point, what are the virtues of the hundreds of years ambiguous text versus what we might want to put down precisely in black and white pixels in a modern contract.

Possibly. You may be giving him too much credit for math skills, however. My observations have been that clever writers are often brain-dead when it comes to math. (The reverse is also true, as they are two very different skill sets.) It wouldn't surprise me that he subtracted 1787 from 2007 and got something greater than 400. But not even the most activist judge could interpret hundreds and hundreds to mean the 220 years that have passed since 1787.

Crimso said...

"To those who'd counter that the entire tax burden should not fall on the richest half of the population"

In terms of Federal income taxes, I believe that is very nearly the current state of things anyway.

Joseph Hovsep said...

Rev: I am astonished that RC and Joseph appear to think this might be a good idea.

I don't think writing a new constitution is a good idea, and neither does Yglesias. But I think its worthwhile for Yglesias to point out the difficulties in and sometimes impossibility of fairly interpreting and applying a document that was written in a very different time, with input from a very narrow demographic slice of the population the document was meant to govern, representing political compromises that aren't really relevant today. It would also be practically impossible to adopt a meaningfully better constitution today. But while interpreting the one we have, we should recognize the weaknesses and limitations of the process and people that created it.

John Kindley said...

Crimso said...
"'To those who'd counter that the entire tax burden should not fall on the richest half of the population'

In terms of Federal income taxes, I believe that is very nearly the current state of things anyway."

In 2005, the median annual household income according to the US Census Bureau was $46,326. A person making that amount pays over 20% of that amount in federal income and other taxes. It's unconscionable that a person struggling to establish and/or maintain a middle class measure of financial security and independence should have to work more than two months out of every year just to pay for the privilege of being governed.

Dewave said...

Compromise? Yes. Does that somehow invalidate it? No.

Old? Yes. Does that somehow invalidate it? No.

Ambiguous? Not really. The 2nd amendment is no more ambiguous than the 1st.

Ti-Guy said...

You really are just a troll, aren't you, Althouse?

Getting back at everyone for losing some childhood beauty pageant, or is it something organic?

Crimso said...

I could have my numbers wrong here, but I believe that 96% of all Federal income tax dollars collected are paid by the top 50% of wage earners. People making the median income may well pay 20% of their income in taxes, but I believe it is accurate to say that nearly the entire burden of taxes falls on the top 50%.

Fen said...

I am perfectly correct to conclude that in times of the state militia the individual citizen can bear (carry) arms and absent a central repository (remembering the rural nature of much of America at the time) they can keep these militia arms at home for speed of assembly. Now to me that is a logical reading

The "militia" is now the National Guard and is often federalized. Whats the point of people being armed in the face of a tyranical government if that government can co-opt their forces by law?

Article I, Section 8; Clause 15 The Congress shall have Power ... To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

The Militia Act of 1792 Providing for the authority of the President to call out the Militia, and providing federal standards for the organization of the Militia.

For the 111 years that the Militia Act of 1792 remained in effect, it defined the position of the militia in relation to the federal government. [via Wiki]

And I think you're focusing too hard on the opening sentence:

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

Instead, consider:

"A well educated electorate being necessary to the security of a free State, the right of the People to keep and read books shall not be infringed."

I don't see anything in there about storing those books at a public library, do you?

alwsdad said...

ZING! Typical of Prof. Althouse to ignore the point and focus on a trivial exaggeration.

Revenant said...

I guess we can strike Matt Yglesias off the list of people to take seriously.

Was there a point at which he was on it?

P. Rich said...

Yglesias. Lefty idiot. And you want to posit a "balanced debate" involving someone like this, Ann? They don't come from the same planet. You'd have to begin with basic word definitions for such as, to steal a reference, "and" and "the." Oh, and definitely "is"...

Simon said...

Revenant - yes, absolutely. 24 hours ago, if you'd asked me for a list of liberal political bloggers worth reading, Yglesias' name would have been at the top of the list. I've enjoyed his blog and his BHTV contributions a great deal.

Imagine you're stuck with a guy on a boat in the middle of a lake. You can have an interesting conversation about the lake, the boat and your plight even if you disagree with one another; but, in the same scenario, you can't have a conversation about the boat, the lake and your plight if the guy starts off by refusing to accept that you're in a boat in the middle of a lake. I read Yglesias' comments ("the constitution ... [is] an ambiguously worded political compromise written hundreds and hundreds of years ago ... [and] [o]bviously, if you were going to start over from scratch nobody would write it that way") as dripping with utter contempt for the Constitution (note the small C, which I doubt was a typo on his part). To the extent that Constitution worship is America's secular religion, Yglesias and people like Sandy Levinson are heretics. I don't even know how to communicate with such people - it'd be like trying to talk to a flat earther, or someone who still believed in the Ptolemaic theory, or a critical legal theorist, or a squirrel (or, for that matter, a 9/11 conspiracy theorist). How do you have a conversation with someone like that? It's one thing to talk to Breyer - you know, someone who just has a different interpretation of it than I do. But when you've got someone who denies its very force and relevance... I just don't know where to begin with such a person.

I honestly worry that there is a very real threat that the Constitution of the United States will be dead or buried alive in my lifetime, and that scares the hell out of me. That there are people - serious people, even - who want to abolish the Constitution strike me as being a lot more scary than all the terrorists Osama can muster. It goes to underscore the absolute necessity, at all costs, of keeping such people out of political -- and most of all, judicial -- power.

Sigivald said...

Cedarford: One can to this day own a muzzle-loading cannon. As far as I know they were never prohibited from private ownership; they certainly aren't now.

Civil war re-enactors own them, without special permits or paperwork or the like (though for obvious safety reasons they don't fire them during re-enactments, with shot).

Cannons and explosives were "not allowed"? Where'd you get that idea? Anyone could buy a barrel of gunpowder, had they the money to do so, as far as I've ever heard.

hdhouse: I take it you've never read the Federalist papers, if you think that ownership of arms is not what "keep" means? It certainly does not mean "keep unless there's a State depository nearby".

The reason defense and hunting and the like are not mentioned at all as reasons for ownership of firearms is not that they were reckoned non-reasons, but that they were not in question; in English common law at the time, self-defense was a given, and ownership of arms, at least in one's home, unquestioned for all free men, was it not? Likewise, on land that was one's own, the right to hunt was unquestioned.

Bearing arms, which the 2A specifies, was another matter - and one it made explicit, and protected.

Joseph Hovsep said...

Simon, He didn't say he wanted to abolish the Constitution. In fact, he said he didn't think writing a new constitution was advisable or even possible. It is healthy in my opinion to honor the document while also acknowledging its limitations and peculiarities, like the fact that the input of women, blacks, and non-land owners were absent in the writing of said document, and several of those revered writers balanced thoughtful consideration of governmental structure with active support of human slavery. Those are no small issues and I think its unhealthy not to consider them when evaluating the Constitution and its writers.

Simon said...

Joseph Hovsep said...
"Simon, He didn't say he wanted to abolish the Constitution. In fact, he said he didn't think writing a new constitution was advisable or even possible."

He suggested that if we did write a new one, it would look nothing like the present one; that, and his every word, drips with contempt for "the Constitution of the United States -- the old one."


"several of those revered writers balanced thoughtful consideration of governmental structure with active support of human slavery."

Abolishing slavery was not politically feasible at the time. The charge that the Constitution is somehow an immoral document because it failed to turn North America into the land of milk and honey is one of the sillier criticisms advanced against it.

"It is healthy in my opinion to honor the document while also acknowledging its limitations and peculiarities, like the fact that the input of women, blacks, and non-land owners were absent in the writing of said document"

With all due respect, Joseph, this, on the other hand, is the silliest criticism I've ever seen advanced against the Constitution. Why is that a "limitation," or a "peculiarity" of note? If I calculate 2 + 2 to equal four, that I am neither female nor black makes no odds on the correctness of the answer.


"Those are no small issues and I think its unhealthy not to consider them when evaluating the Constitution and its writers.

IMO, they are triffling issues - a fortiori in the context of the time, unless one rejects the belief that politics is the art of the possible. The issue addressed by the 12th Amendment was a far more significant failure: that was something they could have foreseen and did have the power to preclude.

The Constitution no more required slavery than it requires the death penalty: at a very minimum, the framers did the most that they could have been asked to have done. "The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. ... [T]o counterbalance the ... criticism of our ancestors, let me say a word in their praise: they left us free to change." And change we did. The failure of the framers to abolish slavery should no more be held against the Constitution than their failure make π an even three be held against them. The union they created would endure, and would one day go on to become the engine by which slavery was finally defeated.

Come to think of it, the really ironic part is that the valence of your criticism of the exclusion of various portions of society from framing and ratifying the Constitution, I suppose, depends in great measure on just how many questions the Constitution subtracts from the democratic process (i.e., how many "rights" it grants that cannot be invaded in the normal course of politics). If the Constitution were purely structural, it would be totally irrelevant that any one group was excluded, because of course their interests and opinions could still be advanced through the democratic process (you don't need a constitution to make political decisions, only a ballot box). Even assuming your hypotheses, it only starts to become problematic that certain groups are excluded from defining the meaning of the Constitution when the Constitution starts subtracting issues from the democratic process by defining rights. And it is your side, not mine, that has kept up a constant drumbeat for subtracting this, that and the other. So you've created a nice self-fulfilling prophesy, wherein under your idea that the Constitution is illegitimate to the extent it shuts minorities out of the decisionmaking process, the more rights you can get the court to constitutionalize, and thus subtract from the democratic process, the less legitimate the Constitution will become.

Simon said...

BTW - I want to like Matt; he seems like a nice guy, and I really do like his blog. But these comments just seem beyond the pale.

Jim M. said...

Simon, (can't figure out how to do the link to your comment like you did with mine), the fourteenth amendment can only apply the bill of rights to the states jot for jot if the meaning of the bill of rights is altered to track what the Resconstruction congress understood the phrases of the bill to mean (probably the same as what they meant when replicated in state constitutions).

One could argue that the Federal Bill remained unchanged, even as it was the Reconstruction-era public meaning that applied to the states. But since the amendment itself asserts that the Federal governmment already protects the rights it is applying against the states, my inclination is to read the 14th amendment as altering the original Bill to fit the more individualistic reading that the Reconstructors had of its provisions.

Either way, when it comes to the states, you always have the task of reconciling the 14th amendment understanding of gun rights and the founders' understanding of gun rights. (Of course the currect case doesn't involve a state.)

Akhil Amar wrote an entire book basically about this interpretive quandry.

hdhouse said...

Sigivald - yes indeedie i've read the federalist papers.

I know Wiki isn't the hotest source but read: http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Conflict_and_compromise.

and to your LAME assertion regarding the Federalist Papers as supporting you (what!) there are only 2 that address the 2nd Amendment: 28 and 29.

29 is most telling in that it deals with an individual state being invaded and the ability of the state to send out the militia without running afoul of the federal government providing with the common defense.

there is NOTHING in the federalist papers that support some asshole from owning a 50 calibre or anything short of that.

Get your facts right or get lost. Enter into serious debate with facts or get lost. I'm very tired and I don't suffer fools lightly.

Simon said...

PUBLIC SERVICE ANNOUNCEMENT:

Jim (and everyone else who's not sure how to do this) - to link to a specific comment here on a blog called Althouse, first right-click on the timestamp beneath the comment and select either "copy link location" (Firefox) or "copy shortcut" (IE).

Then there's a bit of persisting blogspot weirdness: blogger embeds names so that you can link to a specific place in a document, yet the link they give you is wrong! Fortunately (and bafflingly), it's wrong in a uniform way. It's very weird, I don't understand why they can't fix an incredibly easy bit of code, but in any event, the link you'll have copied will look something like this:

http://althouse.blogspot.com/2007/03/ambiguously-worded-political-compromise.html#4807310831806998069

To correct the link, you need to add a letter "c" between the hash (#) and the number. For example:

http://althouse.blogspot.com/2007/03/ambiguously-worded-political-compromise.html#c4807310831806998069

If you're linking to the comment from within the same thread, you can delete everything before the hash, so your link would be:

(a href="#c4807310831806998069")yadda yadda yadda(/a)

Obviously substitute triangular brackets for parentheses. If you're linking from anywhere else - a different thread, a different website - you'll use the full link. But it's that missing letter "c" that throws everyone off. I hope this is useful info.

Simon said...

Now, to the substance of my reply to Jim. LOL.

I should clarify that my view - shared by Akhil Amar, IIRC, since you cited him - is that the bill of rights is incorporated against the states by way of the Privileges or Immunities clause, not by the malleable substantive due process route the court has taken.

Still, my point was essentially what you were saying in your second paragraph. Regardless of the meaning we decide that provisions of the bill of rights applied against the states by the Fourteenth Amendment bear, the Fourteenth Amendment did not (in my view) change the meaning of those provisions as they apply to the Federal government. Indeed, if you think that any clause of the Fourteenth Amendment incorporates the bill of rights as a restraint on state actions, then by the explicit terms of that amendment, whatever changes incorporation might read into the bill of rights as it applies to states, those changes cannot apply to application against the federal government: "no state shall..."

So one might argue, for example, that if you buy into Scalia's view of the static eighth amendment (and I'm not sure I do, but for sake of argument, assume we do) then when applying the Eighth Amendment against state actions, what counts is the original meaning extant in 1868, even if that meaning differs to that extant in 1791, but when applying it against federal actions, it is still the original meaning extant in 1791 that governs. This becomes problematic if one believes that the bill of rights must apply uniformly to actions by all government, state and federal, because to some extent, it bifurcates the standard. But whether that really is a problem is a separate issue.