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 Post subject: The Constitution--Topic 3.3: Free Speech & Citizens United
PostPosted: Wed January 30, 2019 3:43 pm 
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I've been kicking around this thread idea for the last few days. What I'd like to do is use this thread to discuss the Constitution, one specific topic at a time. Once a particular topic has run its course I'll write a new post in this same thread that introduces the new topic and I'll update the thread title with the updated topic. This can cover anything and everything from the preamble's purpose of government through the specific powers of Congress to the amendments, as well as questions about how the Constitution should be interpreted and how key sections and clauses have been interpreted over time, including references to specific Supreme Court rulings when appropriate. Hopefully this will be interesting to enough people that we can have some good discussions on topics that N&D hits all the time like presidential powers or states' rights or gun rights, privacy rights, free speech, etc., but we'll look at them from a constitutional perspective and explore relevant case law. Okay, with that out of the way if you're still with me....

Topic 1:
Does the Constitution still matter? If so, to what degree, and what's the best way to interpret it?


I think this is a logical place to begin. The original Constitution was written in 1787 so it is reasonable to consider how much, if any, importance we should still place on this document 200+ years later in a world that would be utterly unrecognizable to the men who wrote it. Additionally, we know that is an imperfect document that was the result of political compromise and expediency just like all laws are, the major difference of course being that the Constitution is the basis for the powers of the federal government and is the supreme law of the land. When we're debating contemporary policies, should it matter whether the Constitution grants the powers needed to implement them, or should policy-makers be free to make laws and policies that may stretch their powers beyond what is outlined in the Constitution? Should the Constitution act as a constraint on governmental institutions?

Regarding the second question, it seems that two of the most common views of the Constitution today are that (1) it should be interpreted according to the original intentions of the framers or (2) that it is a living document. The first view is referred to as originalism or the doctrine of original intent. This view has become much more widespread over the last few decades and this debate over orginalism has more and more frequently taken place in Supreme Court rulings. D.C. v. Heller (2008), which we will definitely consider more closely in the future if this thread takes off, provides a good example of a victory for this view. The second common interpretation is that of a living constitution, in which the meaning of the words in the Constitution still matter, but they can be reinterpreted over time and their meaning can evolve as society changes.

So...Does the Constitution still matter? If so, to what degree, and what's the best way to interpret it?

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Wed January 30, 2019 4:22 pm 
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Disclaimer: the extent of my constitutional understanding is high school level government courses and what I read casually on the internet.

I think it very much matters in an ideological or influential sense, but, and my lack of knowledge/perspective makes me question this thought, how important it is in practical terms? Just how difficult is it to skirt around the outlined laws, at any level, if you have enough power to do so? It seems like the answer is “not very”. And I very much believe it needs to be treated as a living document. Some of the founders had some great ideas, but the world has changed to such a degree that every word needs to be scrutinized by the people of today that have a stake in the value of tomorrow.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Wed January 30, 2019 7:42 pm 
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Kaius wrote:
Disclaimer: the extent of my constitutional understanding is high school level government courses and what I read casually on the internet.

I think it very much matters in an ideological or influential sense, but, and my lack of knowledge/perspective makes me question this thought, how important it is in practical terms? Just how difficult is it to skirt around the outlined laws, at any level, if you have enough power to do so? It seems like the answer is “not very”. And I very much believe it needs to be treated as a living document. Some of the founders had some great ideas, but the world has changed to such a degree that every word needs to be scrutinized by the people of today that have a stake in the value of tomorrow.

That's a good question. I guess it probably depends on what exactly we're talking about. Some things are pretty black and white and will get struck down by the Supreme Court when some person/institution attempts to do something they clearly aren't allowed to do. But a lot of things end up more in a gray area and people are able to get around it when convenient. I guess my question is, is that a problem, or is all that matters whether the policy itself is good or bad regardless of what the Constitution may say?

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Wed January 30, 2019 8:57 pm 
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This is a topic that will definitely pique my interest.

You've asked a lot of questions within the two main ones you asked in red, so I'll just take each one of them at a time:

Quote:
The original Constitution was written in 1787 so it is reasonable to consider how much, if any, importance we should still place on this document 200+ years later in a world that would be utterly unrecognizable to the men who wrote it.
It obviously should hold a lot of importance as it's the entire foundation behind the law of the United States. The only way where I could see it being argued otherwise is if you want to just scrap the whole thing and start over, like what was done with the Articles of Confederation.

Quote:
Additionally, we know that is an imperfect document that was the result of political compromise and expediency just like all laws are
I'm not sure how royal you're making this "we", but I don't think this is common knowledge at all. I think in many quarters the Constitution gets deified as something that still remains one of the best documents ever, while spacing out on the high significance of things like the Three-Fifths Compromise or the Connecticut Compromise that have caused many problems. I think the society-wide discourse on the Constitution needs to be more aware of this.

Quote:
When we're debating contemporary policies, should it matter whether the Constitution grants the powers needed to implement them, or should policy-makers be free to make laws and policies that may stretch their powers beyond what is outlined in the Constitution?
Each branch is always going to stretch the Constitution toward its agenda as far as it can get away with. Answering that question depends on how much legitimacy the stretching will have in society at that time. There's plenty of examples of that in the past, and we'll likely get plenty more in the future.

Quote:
Should the Constitution act as a constraint on governmental institutions?
Yes, although as the last answer alludes to it's always a delicate balance to make that happen.

Quote:
Regarding the second question, it seems that two of the most common views of the Constitution today are that (1) it should be interpreted according to the original intentions of the framers or (2) that it is a living document. The first view is referred to as originalism or the doctrine of original intent. This view has become much more widespread over the last few decades and this debate over orginalism has more and more frequently taken place in Supreme Court rulings. D.C. v. Heller (2008), which we will definitely consider more closely in the future if this thread takes off, provides a good example of a victory for this view. The second common interpretation is that of a living constitution, in which the meaning of the words in the Constitution still matter, but they can be reinterpreted over time and their meaning can evolve as society changes.
Both of these views are relatively very new in the history of constitutional interpretation. Originalism only dates back to when Scalia joined SCOTUS in the 1980s, and the living document idea maybe just twice as older. There have been plenty of other models invented in the past, like formalism vs realism, strict constructionism, and so on.

But I personally think that all of these models are at best highly overrated, and at worst gobbledygook. In the end, I think all justices of the Supreme Court are deciding cases based on their own highly individualized interpretations of the Constitution. I don't think there's anything wrong with that, and indeed I think it's an inevitability of being a human. I just wish more jurists would admit this instead of trying to build some grand theory behind their own interpretation.

Quote:
So...Does the Constitution still matter? If so, to what degree, and what's the best way to interpret it?
TL;DR:
1) Yes.
2) I have my opinions on the best way to interpret it, but it's almost certainly not going to be the same way as you think is best.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Thu January 31, 2019 7:16 pm 
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Green Habit wrote:
I'm not sure how royal you're making this "we", but I don't think this is common knowledge at all. I think in many quarters the Constitution gets deified as something that still remains one of the best documents ever, while spacing out on the high significance of things like the Three-Fifths Compromise or the Connecticut Compromise that have caused many problems. I think the society-wide discourse on the Constitution needs to be more aware of this.


That might be true. It definitely gets deified in some circles, but I think a lot of people are very quick to point out the lack of inclusion and things like the 3/5 compromise, the lack of a slavery prohibition, etc. But I might be overestimating that based on what I read and who I speak with.

Quote:
Both of these views are relatively very new in the history of constitutional interpretation. Originalism only dates back to when Scalia joined SCOTUS in the 1980s, and the living document idea maybe just twice as older. There have been plenty of other models invented in the past, like formalism vs realism, strict constructionism, and so on.

But I personally think that all of these models are at best highly overrated, and at worst gobbledygook. In the end, I think all justices of the Supreme Court are deciding cases based on their own highly individualized interpretations of the Constitution. I don't think there's anything wrong with that, and indeed I think it's an inevitability of being a human. I just wish more jurists would admit this instead of trying to build some grand theory behind their own interpretation.

Yeah, this is true. When I teach this topic I typically teach strict constructionism, loose/broad interpretation, and originalism. Idk how true it is, but I read that originalism is a product of the Federalist Society specifically as a response to what they viewed as a liberal activist Court.

I agree with you in general, but I do think that those models can serve as a basic framework for interpreting the Constitution. I don't advocate slavishly following any one of them, but personally I think it's useful to begin from a constructionist standpoint as a default starting point.

Quote:
I have my opinions on the best way to interpret it, but it's almost certainly not going to be the same way as you think is best.

Looking forward to hearing about it.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Thu January 31, 2019 8:27 pm 
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4/5 wrote:
Green Habit wrote:
I'm not sure how royal you're making this "we", but I don't think this is common knowledge at all. I think in many quarters the Constitution gets deified as something that still remains one of the best documents ever, while spacing out on the high significance of things like the Three-Fifths Compromise or the Connecticut Compromise that have caused many problems. I think the society-wide discourse on the Constitution needs to be more aware of this.
That might be true. It definitely gets deified in some circles, but I think a lot of people are very quick to point out the lack of inclusion and things like the 3/5 compromise, the lack of a slavery prohibition, etc. But I might be overestimating that based on what I read and who I speak with.
What I'm trying to get at is that I think a lot of Americans, even if they recognize the imperfect compromises that had to be made, still think that the Constitution is a superior form of government. But things like the Senate and Electoral College, even if they were necessary to unite all of the Thirteen Colonies, wreak all kinds of havoc with democratic representation to this day. We could use a little more recognition that some of that is wrong and should be corrected, even if it's difficult to make those corrections.

4/5 wrote:
Green Habit wrote:
I have my opinions on the best way to interpret it, but it's almost certainly not going to be the same way as you think is best.
Looking forward to hearing about it.
Well that's a broad request. :) I figured that as we proceed with your next topics we could drill down on particular articles, sections, and amendments.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 1:20 pm 
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Green Habit wrote:
But things like the Senate and Electoral College, even if they were necessary to unite all of the Thirteen Colonies, wreak all kinds of havoc with democratic representation to this day. We could use a little more recognition that some of that is wrong and should be corrected, even if it's difficult to make those corrections.

Oh okay I see what you're saying. You mentioning the Senate as something that is wrong and needs correcting is interesting to me. I don't think I've ever thought of it in those terms before. Obviously it was the result of a compromise because small states wouldn't have signed on without it, and today it gives disproportionate power and influence to small states, both legislatively and in the Electoral College, so I agree with you there. But I've never given serious thought to that ever being changed. I think part of the problem is that such a change would fundamentally change the nature of the federal government once and for all by delivering an authoritative answer to the debate of whether the "people" or the "states" are the source of federal power. Of course the Civil War and 17th Amendments both probably already did that, but something about this would just seem so much more final.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 7:38 pm 
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4/5 wrote:
Green Habit wrote:
But things like the Senate and Electoral College, even if they were necessary to unite all of the Thirteen Colonies, wreak all kinds of havoc with democratic representation to this day. We could use a little more recognition that some of that is wrong and should be corrected, even if it's difficult to make those corrections.
Oh okay I see what you're saying. You mentioning the Senate as something that is wrong and needs correcting is interesting to me. I don't think I've ever thought of it in those terms before. Obviously it was the result of a compromise because small states wouldn't have signed on without it, and today it gives disproportionate power and influence to small states, both legislatively and in the Electoral College, so I agree with you there. But I've never given serious thought to that ever being changed. I think part of the problem is that such a change would fundamentally change the nature of the federal government once and for all by delivering an authoritative answer to the debate of whether the "people" or the "states" are the source of federal power. Of course the Civil War and 17th Amendments both probably already did that, but something about this would just seem so much more final.
Of course, barring very extraordinary events I don't think it will ever be changed, either, due to the cold hard math of the rules. What I'd like to at least see is more recognition on just ad hoc states have been defined, not just on sheer population difference, but also political and cultural differences within every state.

For one example, the only reason the Oregon Territory and the northern swath of the Louisiana Purchase were split up was to help Gilded Age Republicans retain power. They should have just remained two very area large states, but what's done has been done. For another one in today's world, there's talk about adding Puerto Rico and DC as states to help out Democratic representation. There's also more extreme talk about breaking up California--though if Democrats ever green lighted that then Republicans would retaliate with creating a bunch more low population states out of Texas when they got back power.

Sometimes I wonder how feasible it would have been to say to New Jersey and the other smaller states "Fuck off, we're doing the Virginia Plan, take it or leave it." On the one hand, Europe has a handful of charming microstates that seem to work OK with the rest of the continent even if their existence is odd. But on the other hand, maybe the Republics of New Jersey, Delaware and Rhode Island end up becoming tactical ports for the British when the Napoleonic Wars cross over the Atlantic...


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 7:40 pm 
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I've been bored all day and you reply when I'm going to be distracted for a couple of hours! :shake:

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 7:41 pm 
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4/5 wrote:
I've been bored all day and you reply when I'm going to be distracted for a couple of hours! :shake:
:haha: Have fun, and I'll await your next reply.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 7:55 pm 
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I feel like this thread could've happened over PMs.

Kidding, mostly! It's fascinating to read. I wish I had more time to respond and give some of my own thoughts, even though they'd be much less technical than GH or 4/5.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 7:57 pm 
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yeah i'm fine just reading along to you two having this conversation, keep it up


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 7:59 pm 
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Simple Torture wrote:
I feel like this thread could've happened over PMs.

Kidding, mostly! It's fascinating to read. I wish I had more time to respond and give some of my own thoughts, even though they'd be much less technical than GH or 4/5.

This passive aggressiveness will not stand

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 8:00 pm 
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Simple Torture wrote:
I feel like this thread could've happened over PMs.

Kidding, mostly! It's fascinating to read. I wish I had more time to respond and give some of my own thoughts, even though they'd be much less technical than GH or 4/5.
Heh, I thought that someone might say that, but I'm glad to see others enjoy, and do hope that others join in. This is also a thread where I wish we still had punkdavid around.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 8:25 pm 
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As an outsider, I find this all very interesting. I appreciate the makeup of the Senate for what it is and what it's trying to achieve.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 8:54 pm 
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The constitution is necessary to a functioning republic, but ultimately, even a strong constitution will be undermined as we slip into full democracy and mob rule.

The idea that it should be treated as a living document defeats it's whole purpose. There are methods to allow for the constitution to be changed. On-the-fly reinterpretations are not one of them.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 9:09 pm 
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The OP probably got a little bit more in the weeds than it should have.

Let me try to reset it this way, because I don't think this is a technical question or one that requires expertise, etc.

The original question was, Does the Constitution matter? Let's just focus on that. For example let's say that there's a particular law or policy that you support but that a legitimate argument could be made that it's unconstitutional. Would that be a relevant, important objection or would you be inclined to dismiss it and prefer to focus on the merits of the policy, regardless of its potential Constitutional basis?

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 9:12 pm 
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To me it matters, but I'm also in favor of creative ways to circumvent some of it. For example, you don't need to abolish the electoral college if enough states simply agree to throw their electoral votes to the winner of the national popular vote.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 9:27 pm 
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cutuphalfdead wrote:
To me it matters, but I'm also in favor of creative ways to circumvent some of it. For example, you don't need to abolish the electoral college if enough states simply agree to throw their electoral votes to the winner of the national popular vote.


I kinda agree with this, though I am now fascinated by a potential debate on the source of federal power coming from the states vs the general electorate

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 9:30 pm 
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4/5 wrote:
For example let's say that there's a particular law or policy that you support but that a legitimate argument could be made that it's unconstitutional. Would that be a relevant, important objection or would you be inclined to dismiss it and prefer to focus on the merits of the policy, regardless of its potential Constitutional basis?
Yes, it would be a relevant, important objection. Do you want examples or do you just want me to leave it at it?

I'll also briefly add that the Constitution matters in ways other than just judicial review and limits on government power. It also matters to the very structure of government in the United States, as I mentioned in some of the lengthier comments above.


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