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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 10:16 pm 
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Green Habit wrote:
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.

Go for it. Last thing I want to do is limit the discussion. There’s plenty of Constitution to go around.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Fri February 01, 2019 10:50 pm 
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Green Habit wrote:
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...

Those are great examples of just how arbitrary so many of these sorts of things can be. I don't claim to know what would have happened to the small states (or more generally, the union) if Madison and the large states refused to compromise, and this isn't a perfect parallel, but Article IX of the Articles of Confederation invited Canada to join the united states, so we do kind of have a point of reference. Not to go too alternate history in this thread, but I'm guessing the War of 1812 would have settled the fate of the small states one way or the other.
Articles of Confederation wrote:
Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Sat February 02, 2019 6:31 pm 
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4/5 wrote:
Green Habit wrote:
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.
Go for it. Last thing I want to do is limit the discussion. There’s plenty of Constitution to go around.
Most of the examples that came to my mind were actually the reverse: bad laws that are nonetheless constitutional. But I'll give this one a go:

All children should be vaccinated, and the only exemptions should be for people with compromised immune systems that need the benefit of herd immunity. However, I have to admit that that would likely run afoul of some Due Process Clause considerations. (Some people would bring up the Free Exercise Clause, but I think that's a load of horseshit for reasons that I'll save for if/when we specifically talk about the First Amendment.)


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Mon February 04, 2019 6:53 pm 
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Green Habit wrote:
4/5 wrote:
Green Habit wrote:
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.
Go for it. Last thing I want to do is limit the discussion. There’s plenty of Constitution to go around.
Most of the examples that came to my mind were actually the reverse: bad laws that are nonetheless constitutional. But I'll give this one a go:

All children should be vaccinated, and the only exemptions should be for people with compromised immune systems that need the benefit of herd immunity. However, I have to admit that that would likely run afoul of some Due Process Clause considerations. (Some people would bring up the Free Exercise Clause, but I think that's a load of horseshit for reasons that I'll save for if/when we specifically talk about the First Amendment.)
We'll probably do the First Amendment sooner than later.
Regarding vaccinations, I think the major question would be, what gives Congress the power to make such a policy? I imagine they'd rely on the commerce clause for such powers, but I'm not a fan of that argument.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Mon February 04, 2019 7:04 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.

In this specific example, I agree that this is a clever way to get around a part of the Constitution that to many has outlived its usefulness. But more generally searching "creative ways to circumvent" the Constitution worries me as the main purpose of the Constitution was to create a limited government and this would likely lead to increased power for governmental institutions and policymakers.

BurtReynolds wrote:
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.

:thumbsup:

I agree, although at times I think expanded interpretations based on modernity can be acceptable. For example, I don't think that we need a new amendment to expressly extend the protections of the 4th Amendment to digital property/metadata, but there are members of the Court that have claimed that it can't apply to digital property since the framers couldn't have intended such an interpretation.

In my opinion, such a change is very different from Justices making wholesale reinterpretations of the powers of Congress or presidential emergency powers out of thin air.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 6:28 pm 
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4/5 wrote:
Regarding vaccinations, I think the major question would be, what gives Congress the power to make such a policy? I imagine they'd rely on the commerce clause for such powers, but I'm not a fan of that argument.
I think that's asking the wrong question. Any state could enact my ideal policy (and indeed, most vaccination policy has been enacted on the state level), but states too are bound to constitutional restraints, largely via the 14th Amendment.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 6:38 pm 
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Topic 2: What is the purpose of government?

The Preamble to the Constitution gives us the framers' answer to this question:
Quote:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


This is a relatively narrow answer. Should there be a more expansive role for the government than described in the preamble? I'd argue that a lot of our contemporary political debates can be traced back to disagreements over this question. Other relevant questions to this topic include, Why do we need government (if we do)? What are areas of life that governments can improve outcomes? What are the proper limits of governmental power?

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 6:39 pm 
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4/5 wrote:
But more generally searching "creative ways to circumvent" the Constitution worries me as the main purpose of the Constitution was to create a limited government and this would likely lead to increased power for governmental institutions and policymakers.
I think that circumvention, whether each instance is wise or not, is going to be inevitable. Elected politicians are are going to claim that their elections mandate their agenda, and they'll have to work on getting the other branches to sign off on the legitimacy of said agenda. I think the circumvention can also work the other way: stretching out the Constitution to constrain government instead of to expand it. One example would be John Roberts's opinion in Shelby County v. Holder where he invented a novel way to strike down Section 4 of the VRA that's been widely panned by many observers. (My own take is slightly more sympathetic: I think Roberts was on the right track but the idea he used to do it was not well thought out.)


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 6:48 pm 
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Green Habit wrote:
4/5 wrote:
Regarding vaccinations, I think the major question would be, what gives Congress the power to make such a policy? I imagine they'd rely on the commerce clause for such powers, but I'm not a fan of that argument.
I think that's asking the wrong question. Any state could enact my ideal policy (and indeed, most vaccination policy has been enacted on the state level), but states too are bound to constitutional restraints, largely via the 14th Amendment.

Yeah, you mentioned the due process and free exercise clauses as objections to such a policy. I don't know much about vaccination laws. Aren't they mostly tied to school attendance? If so I have no objection. My first instinct is that a more broad based policy that mandated vaccinations more generally could violate due process rights, but this isn't something I've given much thought to.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 7:13 pm 
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4/5 wrote:
Yeah, you mentioned the due process and free exercise clauses as objections to such a policy. I don't know much about vaccination laws. Aren't they mostly tied to school attendance? If so I have no objection. My first instinct is that a more broad based policy that mandated vaccinations more generally could violate due process rights, but this isn't something I've given much thought to.
Right, current law is tied to school attendance, and while compulsory education of children is obviously constitutional (though it would be a fun discussion to prod at that a bit), Pierce v. Society of Sisters makes it clear that you can't compel kids to attend public school, and has broadly implied that parents have wide latitude as to how to they want their kids to be educated, as long as they're being educated in some form. Hence why a lot of anti-vaxxers homeschool or seek out private schools with laxer vaccine rules.

Vaccination is easily my most authoritarian plank of my ideology: either vaccinate your kids, or we're going to do it for you whether you like it or not. But I also have to accept that my interpretation of the Constitution stands in the way of that.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 7:22 pm 
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Green Habit wrote:
4/5 wrote:
Yeah, you mentioned the due process and free exercise clauses as objections to such a policy. I don't know much about vaccination laws. Aren't they mostly tied to school attendance? If so I have no objection. My first instinct is that a more broad based policy that mandated vaccinations more generally could violate due process rights, but this isn't something I've given much thought to.
Right, current law is tied to school attendance, and while compulsory education of children is obviously constitutional (though it would be a fun discussion to prod at that a bit), Pierce v. Society of Sisters makes it clear that you can't compel kids to attend public school, and has broadly implied that parents have wide latitude as to how to they want their kids to be educated, as long as they're being educated in some form. Hence why a lot of anti-vaxxers homeschool or seek out private schools with laxer vaccine rules.

Vaccination is easily my most authoritarian plank of my ideology: either vaccinate your kids, or we're going to do it for you whether you like it or not. But I also have to accept that my interpretation of the Constitution stands in the way of that.

Yeah I don't think I feel comfortable with that from a philosophical standpoint. I totally get it as a practical consideration (looking at you, Washington state) but I don't think a government should be empowered over citizens in that way. Speaking of methods of circumvention, I'd probably find a tax policy, or something similar, that strongly "encourages" vaccinations more palatable than an outright law requiring vaccinations.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 7:33 pm 
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4/5 wrote:
Speaking of methods of circumvention, I'd probably find a tax policy, or something similar, that strongly "encourages" vaccinations would more palatable than an outright law requiring vaccinations.
Yeah, as long as you craft something that ensures that herd immunity is met I certainly won't let perfect be the enemy of good. The endless issue is that there's a collective action problem on who gets to free ride off herd immunity, with anti-vaxxers making up a wide array of arguments as to why their precious kids should get that privilege.

By the way, I'm working on moving onto Topic 2 right now, still trying to put my thoughts to words.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 7:41 pm 
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Green Habit wrote:
4/5 wrote:
Speaking of methods of circumvention, I'd probably find a tax policy, or something similar, that strongly "encourages" vaccinations would more palatable than an outright law requiring vaccinations.
Yeah, as long as you craft something that ensures that herd immunity is met I certainly won't let perfect be the enemy of good. The endless issue is that there's a collective action problem on who gets to free ride off herd immunity, with anti-vaxxers making up a wide array of arguments as to why their precious kids should get that privilege.

By the way, I'm working on moving onto Topic 2 right now, still trying to put my thoughts to words.

Dealing with such issues sounds a lot like a potential purpose of government!

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Tue February 05, 2019 8:03 pm 
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4/5 wrote:
The Preamble to the Constitution gives us the framers' answer to this question:
Quote:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
This is a relatively narrow answer. Should there be a more expansive role for the government than described in the preamble? I'd argue that a lot of our contemporary political debates can be traced back to disagreements over this question.
I don't agree at all that the Preamble is providing a narrow answer. Indeed, I think all six of the goals offered are very broad in how they can be interpreted, and how they can be used to advocate a wide array of policy. Hence why I don't think it's very useful to ask whether the ideal level of government can be measured against the preamble.

4/5 wrote:
Why do we need government (if we do)?
Some form of "government" is always going to be inevitable, as at some point big, strong men with powerful weapons are going to impose their will on everyone else. The key is to avoid them being used to engage in abuses of power, and to instead ensure that they are used to provide for the best possible outcomes for people.

4/5 wrote:
What are areas of life that governments can improve outcomes?
Well, obviously you need some way to peacefully adjudicate disputes so you don't devolve into mob rule or vigilante justice. You also need some way to manage truly common spaces, like travel corridors, airspace or waterspace. There should be mechanisms to protect one's life, liberty and property from those that want to infringe upon it. (Indeed, that's the very foundation of the Due Process Clause.) I'm just going to leave it at that on a broad note for now, it's easy to get far in the weeds on details.

4/5 wrote:
What are the proper limits of governmental power?
My general rule for society is that people should be free to live their lives as they see fit, and government should generally be limited to ensuring that others don't infringe on people's rights to do so. Now, obviously you have to have plenty of exceptions to that rule to make it workable in practice (as I just demonstrated with the vaccination talk above). But when I look at a law, one of my first considerations tends to be to deem whether or not this law is necessary to exist in the first place.


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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Wed February 06, 2019 3:13 pm 
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Green Habit wrote:
I think all six of the goals offered are very broad in how they can be interpreted, and how they can be used to advocate a wide array of policy.

In my opinion the only one that is really that open to interpretation is the general welfare clause. I think a reasonable reading of the others would look mean that this government is formed to unite the States, establish federal courts, make laws to keep people safe both domestically and from foreign nations, and to do the above while letting citizens be as free as possible.

Green Habit wrote:
Well, obviously you need some way to peacefully adjudicate disputes so you don't devolve into mob rule or vigilante justice. You also need some way to manage truly common spaces, like travel corridors, airspace or waterspace. There should be mechanisms to protect one's life, liberty and property from those that want to infringe upon it.

Agreed. My version is that government is necessary insofar as it protects people from having their rights violated by somebody else.

While I don't think you need a government to provide basic infrastructure like roads, canals, sewage, etc., I think that is another reasonable role for government to play.

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 Post subject: Re: The U.S. Constitution--Topic 1: Does it Matter?
PostPosted: Wed February 06, 2019 5:50 pm 
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4/5 wrote:
Green Habit wrote:
I think all six of the goals offered are very broad in how they can be interpreted, and how they can be used to advocate a wide array of policy.
In my opinion the only one that is really that open to interpretation is the general welfare clause. I think a reasonable reading of the others would look mean that this government is formed to unite the States, establish federal courts, make laws to keep people safe both domestically and from foreign nations, and to do the above while letting citizens be as free as possible.
Let's take those five other points one at a time:

1. "more perfect Union": Obviously this was always tenuous from the start, given all the compromises over slavery that had to be made, and ultimately it wasn't enough to prevent the nation from tearing apart. But beyond that, there needs to be some level of coordinated infrastructure created in order to make a union over a vast array of territory possible. What level that should be has long been under debate.

2. "establish Justice": Justice for whom, and in what manner and to what extent? This is a question that gets brought up a lot in civil rights discussions, for one.

3. "insure domestic Tranquility": If you're looking for a narrow interpretation of this, it likely refers to things like Shays Rebellion. But I see broad wiggle room in "mak[ing] laws to keep people safe [...] domestically". Do things like hate crime prosecution, drug prosecution, gun restriction, etc. fall under achieving domestic tranquility?

4. "provide for the common defence": I agree that this refers to foreign threats, but what is needed to protect the nation from them? Standing armies were long controversial for much of history, but now it's well accepted. Should it be? Does TSA security theater fall under this category? Or Trump's wall?

5. "secure the Blessings of Liberty": One person's liberty may be another person's oppression. As we've discussed throughout this thread already, defining the correct maximization of liberty is a difficult task, with plenty of disagreement along the way.

Now, I don't necessarily agree or disagree with some of the broad definitions I've made here. But others are going to make the arguments in favor of those, and they're going to try to use whatever political power they can gather to achieve them.

4/5 wrote:
While I don't think you need a government to provide basic infrastructure like roads, canals, sewage, etc., I think that is another reasonable role for government to play.
I agree that it can be possible, but it won't be easy without some sort of government involvement. For example, if you need to run a toll road through a neighborhood, and the property owners won't sell, you either need the government to declare those property rights null and void via eminent domain, or you live with an ineffective road. I can also see serious liberty issues with the more extreme visions of the lack of public infrastructure. If you aren't allowed or can't afford to travel to destinations because of a lack of such infrastructure, how free are you?


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 Post subject: Re: The U.S. Constitution--Topic 2: Purpose of Government?
PostPosted: Tue February 19, 2019 3:18 pm 
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You got a Topic 3 lined up? This has been fun stuff.


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 Post subject: Re: The U.S. Constitution--Topic 2: Purpose of Government?
PostPosted: Tue February 19, 2019 4:03 pm 
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Green Habit wrote:
You got a Topic 3 lined up? This has been fun stuff.

I do. Maybe later today.

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 Post subject: Re: The U.S. Constitution--Topic 2: Purpose of Government?
PostPosted: Wed February 20, 2019 7:25 am 
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Quote:
Topic 2: What is the purpose of government?


Do you mean US government, or government in general? "Intended purpose" might work better in the case of the first. It seems the founders genuinely tried to make a more free society for most citizens, not just themselves, and intended it to be as hands off as possible.


Generally (and ideally), I think the only purpose of government should be to protect property rights, settle disputes and enforce contracts. Maybe a few other things if I'm feeling tyrannical.

But ultimately government is just a tool to enforce the will of the ruling class and protect their interests.

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Last edited by BurtReynolds on Wed February 20, 2019 7:36 am, edited 1 time in total.

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 Post subject: Re: The U.S. Constitution--Topic 2: Purpose of Government?
PostPosted: Wed February 20, 2019 7:33 am 
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I should read more about the founders, though. I don't know much about the specifics. I've been more interested in the broader philosophical stuff from Locke, Mill, Rousseau, etc. Might help to see how those ideas were put into practice.

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