Supreme Court

Beyond the Limits of the Constitution

A leading liberal law professor abandons the Constitution in the name of understanding it.

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America's Unwritten Constitution: The Precedents and Principles We Live By, by Akhil Reed Amar, Basic Books, 640 pages, $29.99

America's argument over the meaning of its Constitution started before the document was even ratified. Between October 1787 and May 1788, Alexander Hamilton, James Madison, and John Jay released a series of 85 essays now known collectively as The Federalist Papers. Published anonymously in newspapers and pamphlets under the pseudonym Publius, these pieces represent one of the earliest sustained efforts to explain the United States Constitution, which was then still being considered by state conventions. Although the governing blueprint was soon approved, the battle over its meaning rages on.

Today that long-running debate is largely organized around two competing ideas. On one side is a school of thought known as living constitutionalism, which holds that the document's meaning must evolve to meet modern needs. Don't let the dead hand of the past strangle the present, proponents of this view say. On the other side is the doctrine known as originalism, which maintains that the Constitution should be interpreted according to its meaning at the time it was adopted. If you want the text to evolve, originalists will tell you, there is a formal amendment process spelled out in Article V.

In his strange and fascinating new book America's Unwritten Constitution, Yale law professor Akhil Reed Amar offers something of a third way, a liberal twist on originalism that draws heavily from both approaches. "Too often, each side shouts past the other," Amar writes, "and both sides overlook various ways in which the text itself, when properly approached, invites recourse to certain nontexual—unwritten—principles and practices." Despite his best efforts, Amar is unlikely to make peace between the two camps.

Framed as a sequel of sorts to his acclaimed 2006 book America's Constitution: A Biography, Amar's latest effort begins with the counterintuitive premise that to fully grasp the text of the Constitution you sometimes have to go beyond it. Amar dubs this outer realm "the unwritten Constitution," which, "at a minimum, encompasses various principles implicit in the written document as a whole and/or present in the historical background, forming part of the context against which we must construe the entire text."

This claim is not necessarily as controversial as it sounds. Staunch originalists such as Supreme Court Justice Clarence Thomas routinely draw from relevant historical sources to help establish the original meaning of constitutional provisions. In his 2010 concurrence in McDonald v. Chicago, for example, Thomas cited the writings of figures ranging from the abolitionist leader Frederick Douglass to the famed English jurist William Blackstone to support his argument that state and local governments must respect the right to keep and bear arms.

Similarly, as Amar notes, The Federalist Papers have been cited in more than 300 Supreme Court rulings and in more than 6,000 law review articles, while "various Federalist essays nowadays form part of the standard curriculum of many if not most high-school and college civics courses." The extra-constitutional writings of Publius have thus "earned a seat of special honor as a privileged guide to constitutional interpretation."

The Constitution itself refers to unwritten components. The Ninth Amendment, for example, declares, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." James Madison may not have spelled out those other rights when he drafted the amendment, but they still merit legal respect.

That much is mostly uncontroversial. The rest of Amar's book tells a much less plausible story. It is organized into 12 chapters, each of which makes a case for a different brand of unwritten constitutionalism, ranging from "America's Lived Constitution" to "America's 'Warrented' Constitution" (referring to the decisions of the Supreme Court under Chief Justice Earl Warren) to "America's Unfinished Constitution." The discussion frequently strays so far from the text that the Constitution itself begins to feel like an afterthought.

This tendency is especially troubling because Amar initially seems alert to such interpretive dangers. "The unwritten Constitution should never contradict the plain meaning and central purpose…of an express and basic element of the written Constitution," he declares. "Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why." 

This is excellent advice. Unfortunately, Amar is not always scrupulous about following it. Consider his take on the 19th Amendment, which made it illegal for the government to deny citizens the right to vote based on sex. Or at least that's what the text says. Under Amar's creative reading, the amendment actually accomplished something far more transformative, effectively overriding all previous laws, legal precedents, and even explicit constitutional provisions that run counter to "women's rights," a term he never fully defines. "Congress should enjoy broad power to protect women's rights for the simple reason that the unwritten Constitution is a Constitution of American popular sovereignty," he argues, "and popular sovereignty is perverted when more democratic, post-woman suffrage enactments championing women's rights are trumped by less democratic, pre-woman suffrage legal texts."

As an example, Amar points to the Supreme Court's 2000 decision in U.S. v. Morrison. At issue was a provision of the Violence Against Women Act of 1994 that created a federal cause of action for gender-motivated crimes. According to Congress, because violence against women, taken in the aggregate, has a negative impact on interstate commerce, the statute fell squarely under Congress' authority "to regulate commerce…among the several states." The Supreme Court disagreed, ruling that the Commerce Clause was not broad enough to reach noneconomic intrastate activity. As the Court put it, "The Constitution requires a distinction between what is truly national and what is truly local."

Amar finds this conclusion preposterous, denouncing the Morrison majority for its "stingy interpretation" (he deploys the epithet stingy five times in five pages) and for privileging "the old Constitution" over a modern law. "If Congress tomorrow plausibly thinks that a women's-rights law might promote women's full political equality," he declares, that "should be good enough."

Should it really? Remember Amar's own ground rules: "The unwritten Constitution should never contradict the plain meaning and central purpose…of an express and basic element of the written Constitution." Yet Amar's preferred outcome in Morrison would contradict the plain meaning of the written Commerce Clause, which, as Alexander Hamilton explained in Federalist 17, did not extend congressional authority to cover "the administration of private justice between citizens of the same State…and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation."

Amar's re-imagining of the 19th Amendment would also contradict another "basic element of the written Constitution," the doctrine of enumerated powers, which holds that each branch of government may exercise only those powers granted to it by the Constitution. To say that it's "good enough" for Congress to assert a women's-rights rationale in support of a debatable piece of legislation is to grant Congress a blank check no longer subject to judicial review. So much for knowing "when to stop, and why."

Originalists will of course have no patience for such legal shenanigans. But living constitutionalists are also likely to be frustrated by Amar's idiosyncratic approach. To understand why, let's return once more to the meaning of the Commerce Clause.

In 1935 the Supreme Court handed down its eagerly anticipated decision in Schechter Poultry Corp. v. United States. At issue was the constitutionality of the National Industrial Recovery Act (NIRA) of 1933, a centerpiece of the New Deal's first 100 days hailed by President Franklin Roosevelt as "the most important and far-reaching legislation ever enacted by the American Congress."

The Supreme Court agreed with FDR about the law's unprecedented reach, unanimously striking it down for exceeding Congress' power to regulate interstate commerce. If NIRA were allowed to stand, Chief Justice Charles Evans Hughes wrote for the Court, there would "be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government." Even progressive Justice Louis Brandeis agreed, telling several White House lawyers, "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."

In response, FDR denounced the Supreme Court for sticking to the Constitution's original meaning. "The country was in the horse-and-buggy age when that clause was written," Roosevelt famously sneered at a press conference held after the ruling. His administration favored a more flexible approach, he continued, one that would "view the interstate commerce clause in the light of present-day civilization."

In other words: living constitutionalism. In the years since, liberal lawyers, law professors, and judges have mostly followed FDR's lead. So has the Supreme Court, which in 1942 reversed course on the Commerce Clause by holding that the cultivation and consumption of wheat entirely on one man's farm somehow still counted as "commerce…among the several states."

Why should today's living constitutionalists abandon this tried-and-true approach for Amar's peculiar vision? According to America's Unwritten Constitution, liberals must first tie the 19th Amendment into knots before they can go about striking a blow against the "horse-and- buggy" Commerce Clause. Why not just "view the interstate commerce clause in the light of present-day civilization," as FDR did? 

Because Amar is a talented writer and a knowledgeable legal historian, even those readers who disagree with his judgments will find something to enjoy in America's Unwritten Constitution. But as an effort to triangulate between originalism on the one side and living constitutionalism on the other, the book must be judged a failure. 

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185 responses to “Beyond the Limits of the Constitution

  1. Don’t let the dead hand of the past strangle the present, proponents of this view say.

    Which is why we have amendments. If you can’t get an amendment passed, then I would say the dead hand of the past is only strangling your insufficiently-popular schemes.

    Here’s a test for people peddling theories of interpretation: if your theory always, by some miracle, advances your preferred political agenda, and would never actually thwart that agenda, then your theory is a results-oriented, principle-free pretext, a con, a sham.

    1. That pretty much covers it.

      I guess I’m not sure how a living constitution is meaningfully different from no constitution.

      1. I guess I’m not sure how a living constitution is meaningfully different from no constitution.

        It isn’t really. It just requires a little more gymnastics to get around. People prefer to assume ‘progress’ is always positive and desirable, despite the many instances of it leading to a dead end. If the Constitution impedes this progress, then ignoring it is deemed to be justified.

      2. Yes.

        I am in favor of applying new concepts to the constitution – such as applying the 2nd Amendment to all implements necessary for self-defense, such as expanding the range of what constitutes a prohibited cruel and unusual punishment in light of new knowledge, and such as explicitly recognizing (at a minimum) the peaceful attainment of all of the human needs identified by Maslow as a right guaranteed by the 9th Amendment – but simply ignoring the constitution when that is convenient to the powerful? Why bother with having a constitution at all if that is how we are going to deal with it. Might as well go directly to the next stage: war.

        1. Indeed. And we can be sure that the war you believe to be justified would result in rule by those who understand the limits and shortcomings of representative government. The establishment of a just and moral dictatorship would prevent the inevitable subornation of representative government by powerful, wealthy interests resulting in a just, equitable and class-free society.

          At least that’s the speculative narrative. Too bad history already provides an excellent experimental test of the idea complete with results not exactly supportive of the predicted outcome.

    2. They biggest problem I see with a “Living Constitution” is that it is not possible to know, from day to day, what the law is. It can change at any time.

      While the same thing can happen now, what with overturning precedents, etc., interpretations tend to stay rather static over time.

      1. “They biggest problem I see with a “Living Constitution” is that it is not possible to know, from day to day, what the law is. It can change at any time.”

        Feature, not a bug?? Some people like it that way.

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  2. Wow, you wrote all that about the new shade of lipstick that’s been stuck on the pig that is the “living Constitution”?

  3. Beyond the limits of the constitution?

    Let me consult my Cliff Notes version here.

    “Congress can do anything necessary and proper to regulate commerce and promote the general welfare.”

    Nope. Nothing in there about limits.

    1. “proper” while open to interpretation, is a limiting condition.

      Please read more carefully.

    2. Shorter Cliff Notes, as adapted by the Federal Government:

      “Congress can do anything necessary and proper to regulate commerce and promote the general welfare.”

  4. Don’t let the dead hand of the past strangle the present…

    Uh-oh.

  5. Amar should explain how to use Article VII for its ostensible purpose without merely presupposing “Establishment” and then using that presupposition to argue for the very same thing.

  6. Probably apocryphal, but supposedly Clarence Thomas was asked during a Q&A session following a speech if the constitution was a “living document.” He reached into his pocket, pulled out a copy, examined it, and declared, “This one appears to be quite inert.”

  7. It’s a fucking contract. If you don’t like what it says amend it. Not rocket science.

    1. That’s too hard. It’s so much easier to just say things mean something completely different than what they actually say.

    2. Hm. I don’t recall signing that particular contract. So why is it relevant to me?

      1. The states signed on to the contract, but it’s like 100 years old, so WHATEVER.

        YOU signed a “social contract”. Remember? REMEMBER?

        1. “YOU signed a social contract”

          I can’t be held liable for that! I was either a minor or drunk at the time. Can’t remember which. I was in no condition to consent!

      2. Hm. I don’t recall signing that particular contract. So why is it relevant to me?

        There are thousands of laws you did not put your signature to. Let’s see how far you get ignoring them all.

        1. Those Laws typically revolve around principles of nonaggressions towards those around you.

          There’s a world of difference between “Don’t murder your neighbor”, and “the government is allowed to consider you it’s property cuz ‘we’re all in this together'”.

  8. Except that so-called originalists have every bit as much of an agenda and are every bit as much political operators as living constitutionalists. Which is to say, they’re all living constitutionalists, one side just lies about it. Try to squeeze Scalia’s jurisprudence into the plain text of the constitution and see if it fits any better than Ginsburg’s. Not that such an effort would be easy: the entire reason judicial review exists is because some constitutional questions are not easily answered, and novel ones come up all the time.

    The Constitution contains fewer than 8,000 words and many of them are arranged in purposefully vague clauses. Not everything that ever becomes a matter of contention in this country can be solved definitively by a plain reading of this text. The Bible has a lot more words and Christians have been splintering over interpretations of its dicta for centuries.

    1. Not everything that ever becomes a matter of contention in this country can be solved definitively by a plain reading of this text.

      Agreed. But many matters of contention that can be settled by plain reading have instead been settled by a convoluted reading. The example of a man not being able to grow wheat on his own land for his own consumption was given in the article.

      1. Liberals favor broad commerce clause powers because they see it as useful for the federal government to be able to be flexible with respect to regulating the economy (useful meaning able to affect positive outcomes for people). Antigovernment conservatives want limited federal economic powers because they don’t like the federal government doing things because their ideology says it’s bad. The constitution doesn’t actually say anything about wheat farmers. I’m admitting living constitutionalists are guilty of promoting ends–but I’m also arguing so-called originalists are just as guilty of it, only their ends are ethereal and dogmatic while liberals’ ends are humanistic, and therefore better.

        1. Tony:

          only their ends are ethereal and dogmatic while liberals’ ends are humanistic, and therefore better.

          Believing that liberals are compassionate and seeking the greater good, instead of their rational self-interest, sounds very faith-based to me.

          1. Not an uninteresting philosophical point. You can believe all the same things by appealing only to rational self-interest. You’ll just say that it’s in your best interest for human well-being to be maximized in the world, since you’re a human and you live in the world.

            1. Tony:

              You’ll just say that it’s in your best interest for human well-being to be maximized in the world, since you’re a human and you live in the world.

              Yeah, it almost sounds like claims of lofty motives, such as human well-being maximization, might just be excuses for self-interest, such as obtaining goods, services, and power, at the expense of others.

              I’d hate to dogmatically follow some set of elite policy makers, claiming to serve the greater good, while they just used the system to serve themselves and their constituents, at others’ expense. Hmmmmm…

              1. Leftists will not admit that power is a self interest, just like profit.
                They will not admit that power, unlike profit, really does come at the expense of others. For someone to profit they must please people, because the people have a choice. Power, not so much. The people do not have a choice.
                Admitting this would be honest. And it is pretty much a given that leftists are not honest.

              2. That could just as easily happen to a libertarian cheering on a Rand Paul, couldn’t it? Or are you saying your motives aren’t lofty?

                1. That is where you miss the point – libertarians say that dominion over others is the problem, screw motive – if I have no power over you or anyone, my motives can be evil as Satan – but they are harmless. Your motives maybe coming from what you consider a Great Leap Forward, but you may kill 40 million people in the process. Without power over others, bad results cannot occur regardless of motives behind the actions that cause the harm.

                2. BURN THE STRAW MAN! BURN HIIIIIIM!

          2. Believing that liberals are compassionate and seeking the greater good, instead of their rational self-interest, sounds very faith-based to me.

            Well, yeah. That’s what humanism is. It is a religion that worships and puts faith government. Add to that their inability to draw a distinction between society and government, it is actually self-worship. Faith all around.

            1. [Well, yeah. That’s what humanism is. It is a religion that worships and puts faith government.]

              That’s like saying all libertarians are anarchists. I’m a secular humanist and I believe in absolute self-ownership and natural rights derived by virtue of my very humanity. I’m guessing most atheist libertarians also, anarchist or not, consider their rights a province of their personhood.

        2. Fuck you, the Constitution means what it says.

          1. This is why I tend to favor just reading the words. It’s how all laws that apply to the little people are interpreted.

        3. Funny how you give a clear cut rationale about what the liberals want the Commerce Clause to be, followed by an assumption that those with a different view are unthinking ideologues with no rationale. You’ve have built a wall around your own ideology so nothing can influence or change it, not letting pass any threat to your preferred belief system, including reason (and I don’t mean the magazine). I want limited federal power over the economy because I don’t trust a political machine wielding populist power to plunder what ostensibly free people produce. It’s a matter of justice and morality.

    2. The Constitution contains fewer than 8,000 words and many of them are arranged in purposefully vague clauses.

      So then if it’s not expressly written out as something the government can do, they shouldn’t do it. If something is vague, that doesn’t give them free reign to push the envelope.

      1. So then if it’s not expressly written out as something the government can do, they shouldn’t do it.

        Try selling that to an 8-year-old, which is the practical mentality of government representatives. They’ll do it if they can get away with it. That’s all that matters. A ‘living constitution’, eliminating an obstacle, makes getting away with the preferred agenda more probable.

    3. A longer document does not necessarily mean that the document is less vague. In fact, it can be more vague, because it can contradict itself, or can contain more phrases that can be interpreted in many different ways (like that Bible you mentioned).

      Or, conversely, how “Die Hard on a battleship” became a movie pitch: a short phrase that tells you precisely what you need to know about the subject.

  9. Not everything that ever becomes a matter of contention in this country can be solved definitively by a plain reading of this text.

    But you still don’t like even the ones that can because you don’t like the outcome.

    1. The point is a question would never have arrived at the Supreme Court if it were easy. And if it’s not easy, then either side could plausibly be right.

      In the end, all we have are outcomes. Since those charged with interpreting law in light of the constitution, or interpreting the constitution itself, are going to always be outcome-focused, I’d rather they focus on outcomes that have to do with the well-being of human beings and not with according to some nonhumanistic governing ideology.

      1. The point is a question would never have arrived at the Supreme Court if it were easy. And if it’s not easy, then either side could plausibly be right.

        Bull. Fucking. Shit.

        “Shall not be infringed” is easy. The hard part is coming up with how much infringement is politically and judicially acceptable.

        So, plausibly argue to me how “shall not be infringed” really means “may be infringed.”

        1. Because fuck you that’s why?

        2. It’s really the words that come before “shall not be infringed” that may be difficult to interpret.

          1. “The right of the people?

            1. Sigh.

              Which ones are difficult for you to interpret?

            2. I think he’s talking about “to keep and bear arms”. Even then it’s pretty clear. Arms, in this context means firearms. There is no mention of a specific type of firearm, so it must mean all types of firearms. Combine that with “shall not be infringed” and its clear that any law that limits access to any type of firearm in any way is unconstitutional. You can try to make a logical argument to the contrary, but you will fail.

              1. Yeah, that’s what I was trying to type when I submitted that truncated post.

                I’m waiting to see the argument he makes that the 2d plausibly supports infringement. Not holding my breath, but waiting.

            3. The right of the people to keep and bear arms (for the purpose of maintaining well-regulated militias) is open to interpretation, and that’s not an opinion but a fact. At the very least you have to ask “what arms?” because of the obvious practical implications.

              1. Nice misquote. Or is the rearrangement and re-punctuation part of the “living” aspect?

                1. That’s at least a perfectly valid interpretation of the language. It’s more valid than ignoring the militia text altogether.

                  1. “Interpretation” != “reordering and rewording”

                    You must be running out of talking points.

                  2. No, it isn’t. It’s a misquote and rearrangement. How about this one?

                    “The right of the people to bear whatever arms they want whenever and wherever they want shall not be infringed. And if they want to join a militia, go for it.”

                    Happy now? Or would you prefer to, I dunno, stick with accurate quotes?

                    1. As a lay-reader it seems pretty obvious to me that the militia text sets boundaries. The right to bear arms exists specifically because people need to have the ability to form militias to defend their states. Since you guys tend to the textualist side, why would it mention the specific case of militias (well regulated at that!), but not a word about individual self-defense against thugs or any of the other rights you claim the 2nd confers?

                    2. Because it only recognizes that a pre-existing right exists and mentions the reason for including the mention of that right in this political document, which document lays out the limitations on the government’s power and doesn’t purport to be a treatise on the nature and extent of right’s beyond that.

                    3. Blah blah blah natural rights.

                      The 2nd is at least as much about militias as it is about guns.

                    4. As a lay-reader it seems pretty obvious to me that the militia text sets boundaries.

                      How so? The words “shall not be infringed” have a very clear and specific meaning. If the people are not allowed to keep and bear arms outside of a militia context, then “the right to keep and bear arms” is clearly being infringed.

                    5. Fortunately, the constitution doesn’t have a “Tony can rearrange things and ignore phrases that he doesn’t like” amendment.

                    6. You do know that “well-regulated” doesn’t mean the government actually regulat….hahahahahhahaha I couldn’t even finish the sentence cause I know you’re such a retarded fuck that you do think that.

                    7. “well-regulated” in 1789 meant: “properly functioning”. A well-regulated clock was one that functioned properly. The first part of the amendment is descriptive, the second part after the comma is the operative clause.

                    8. To defend the security of their state not states (or States.) That state being the state of being free.

              2. The right of the people to keep and bear arms (for the purpose of maintaining well-regulated militias)…

                Woah, woah. You’re interjecting text that isn’t in the amendment. Try again, limiting yourself to the text of the amendment.

              3. Please feel free to start the Constitutional Amendment process rolling any time you like.

              4. At the very least you have to ask “what arms?” because of the obvious practical implications.

                In the context of the 2nd, “arms” clearly means “firearms”. The fact that no specific arms are mentioned means that it applies to all firearms. If “what arms” is open to interpretation then the Constitution means the exact same thing with or without the 2nd, so why bother to write it and ratify it? Remember, the Constitution was meant to be the law of the land. We have to assume that every phrase has a specific purpose with respect to defining our government.

                1. Wouldn’t that mean all arms, ie: swords, bayonets, muskets, rifles, guns, cannons, warships, etc.?

                  1. —Wouldn’t that mean all arms, ie: swords, bayonets, muskets, rifles, guns, cannons, warships, etc.?—

                    Since it was legal at the time of ratification for private citizens to own cannons and warships, I would say yes. If it wasn’t legal, there would be no reason to give Congress the power to grant letters of margue and reprisal.

              5. “The right of the people to keep and bear arms (for the purpose of maintaining well-regulated militias) is open to interpretation”

                Leaving everything up to the wishy-washy revisions and reinterpretations of a bunch of powermad statists who feel the rules have to change whenever they desire more power is the exact opposite purpose of the document, dipshit.

                “At the very least you have to ask “what arms?” because of the obvious practical implications.”

                Tony: “The Second Amendment was clearly about the grafting of ursine arms onto human beings. I’m super serial!”

          2. It’s really the words that come before “shall not be infringed” that may be difficult to interpret.

            “A well-read Militia, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.”

      2. I’d rather they focus on outcomes that have to do with the well-being of human beings and not with according to some nonhumanistic governing ideology.

        More moral nihilism from our favorite self-described “materialist”.

        1. I didn’t know that was Choney in “The Big Lebowski!” I HATED him in that movie!

        2. Humanism is not nihilism. And I don’t know what realistic alternative there is to materialism.

          1. Anti-materialism?

          2. “Humanism” doesn’t mean anything. You are a materialist (as you’ve said yourself). Materialism strictly implies moral nihilism.

            And I don’t know what realistic alternative there is to materialism.

            Correct, you don’t.

            1. No it doesn’t. You can have ethical principles without believing in magic. Lots of people do. And they’re usually more morally virtuous people than those appealing to magic.

              1. No it doesn’t. You can have ethical principles without believing in magic. Lots of people do. And they’re usually more morally virtuous people than those appealing to magic.

                Right, but the existence of valid ethical principles implies objective truth: some ideas are right, some ideas are wrong.

                This runs counter to your frequently asserted claim that all policies are equal, and it’s just a matter of settling a difference of opinion through democracy.

                You can’t have it both ways.

                1. Moral ideas are right or wrong with respect to some moral axiom(s). I argue that the North Star for all moral questions should be human well being (which obviously is open to some interpretation), instead of “what pleases God” or any of the other magic-based moral systems people have thought up, all of which I would categorize as dogmas, and include antigovernment dogma among them.

                  1. Tony said:

                    and include antigovernment dogma among them.

                    Oh, I reject all antigovernment dogma, too.

                    What I keep running into, though, is all the anti-government arguments that point out how government has made mankind less happy. You know, like murdering 250 million people last century.

                    1. I would refer you to Pinker’s work on violence. Government hasn’t gotten any smaller in the last few centuries, but people have been dying at an increasingly lower rate.

                      Government may be the cause of lots of misery but take it away and all you have is misery, unless you can demonstrate some society in which that wasn’t the case.

                    2. Tony said:

                      Government may be the cause of lots of misery but take it away and all you have is misery, unless you can demonstrate some society in which that wasn’t the case.

                      I’m pretty sure that Cambodia would have been better off without the Khmer Rouge, under practically any circumstance.

                      Having government does not magically make bad things go away, and believing so is a faith-based argument. It’s like a religious nut saying that God is always the answer. “Who created the Earth?” “God.” “Who keeps everyone happy and comfortable, crime-free and pollution clear?” “Government.” It’s an answer that’s really never an answer.

                    3. I’d say government is a necessary component of a stable, peaceful society. I’d be fascinated to hear of some instance where that hasn’t been the case.

                    4. This is just an argument from ignorance.

                      Also, necessary for peace and stability?!? We’ve had governments for quite a while now. Europe, the great model of liberal peace and stability, killed about 100 million people over about 10 years during its world wars. Stalin killed millions. China’s Great Leap Forward killed about 40 million people.

                      The greatest acts of violence in all of history were committed by states. How can you possibly claim that governments are necessary for peace? Because images of less government all involve Mad Max fantasies of wearing viking helmets and riding motorcycles, swinging maces in fights over tanks of juice?

                      Yeah, let’s ignore all of human history, entertain post-apocalyptic fantasies as a false choice alternative, and declare governments necessary for peace.

                    5. That is just so silly, I can’t get over it. I’m really glad we’ve had all these governments for thousands of years. Otherwise, we’d have been forced to skip the uninterrupted peace and prosperity of human kind that we’ve enjoyed for millennia. How great it is that we’ve lived in a world without war and instability for generations!

                    6. Tony said:

                      I would refer you to Pinker’s work on violence. Government hasn’t gotten any smaller in the last few centuries, but people have been dying at an increasingly lower rate.

                      Why start a few centuries ago? Why ignore all pre-modern human history, including the renaissance and the revolutions in the 18th century? Do you think that the new relative liberty people experienced before 1800 could have anything to do with it?

                      The last few centuries include the advent of the industrial revolution and massive capitalism, massive increases in GDP and quality of life, including food, sanitation, medicine, etc. Do governments get the credit because they didn’t generally shrink after the revolutions? That’s a pretty weak causality argument.

                      People have been dieing at a lower rate because of capitalism and increased production and technology, despite the government, not because of it.

                      Governments have murdered millions in that same time period, not counting war, and the most notable, massive murders, always correspond to the strongest states, with the least respect for individuals. For all the fears of monopolies, at least Standard Oil never committed genocide. I guess you have to look to governments to commit large, organized, national projects like that. How awesome.

                    7. Commonwealth Iceland existed for over 200 years before the Norwegian king came knocking.

              2. Says the guy who feels that legislation is akin to magical incantations.

                I know this will come as a shock to you, but people and property actually existed before government. I know you feel that those things did not exist until legislative bodies created magical incantations to bring them into existence, but rather it was the other way around. Governments were instituted to protect life and property because those things existed before government.

                Holy fuck you’re a waste of carbon.

                1. Depends on how you define government. There was never a time when people were unruled. Only relatively recently have we been able to innovate methods of governing that give more than one or a few elites any say in the matter. So unless you want to direct me to some anthropological evidence of a golden age in which property (as we understand it) existed but government (in some form) didn’t, I’m going to assume your claim is nonsense. You live in one of the freest societies ever in the history of homo sapiens. I’m not saying shut up and be happy with it, but a little perspective might be in order.

                  1. A child born at home, locked in the basement, and repeatedly raped by their parents is freer than ever before when they’re allowed to come upstairs to use the bathroom. What’s your point?

                  2. As I said, you accuse libertarians of appealing to magic, yet you feel government and legislation to be magical.

                    1. Not sure how you’re getting that.

                    2. You feel that government creates rights, creates property, creates life itself.

                      If that is not a belief in magic, I don’t know what is.

                    3. It’s an explicit rejection of magic.

                    4. Sure Tony. Whatever. You believe that men and women in black robes can create rights that did not exist simply by uttering magical incantations. You can deny it all day long, but it is what it is.

                    5. Add to that your belief that by printing currency, government creates value out of thin air, you most definitely feel government to be magic.

                  3. Tony said:

                    Depends on how you define government. There was never a time when people were unruled. Only relatively recently have we been able to innovate methods of governing that give more than one or a few elites any say in the matter…You live in one of the freest societies ever in the history of homo sapiens

                    If you consider this an improvement, then, in what direction would you consider improving the status quo?

                    I’d consider it an improvement, too. The incredibly limited government and the embrace of capitalism and relatively free markets produced the most amazing increase in production the world has ever seen, and it appears to be working great for China, now that they’ve caught on.

                    But, apparently, we should disregard history, since it’s better for all mankind to really grow the power of the state and have it dictate the economy. Let’s go ahead, clamp down on GDP growth, and abandon all historic economic data, just so we can follow liberal dogma into economic stagnation.

                    1. I’ve never argued for scrapping capitalism. (Well, not yet.) Only that pairing capitalism with a robust state (the tool we use to mobilize resources on a large scale) makes for the best alternative to either a heavily controlled market or a heavily hobbled state.

                      I’m all ears if you want to posit some other means of mobilizing resources on a large scale for collective purposes, but denying people the right to large-scale projects for the collective good is to deny them an element of freedom. If we followed the requirements of many libertarians we’d only be allowed a form of capitalism that more closely resembles rudimentary bartering than anything like a modern economy.

                    2. Nothing about capitalism or libertarianism denies people the right to act collectively as long as it is done voluntarily.
                      Of course that means that there will be less collective action since it’s more difficult to get people to act voluntarily than it is to coerce them under threat of violence and kidnapping, but that doesn’t mean there will be none at all.

                    3. Tony said:

                      I’m all ears if you want to posit some other means of mobilizing resources on a large scale for collective purposes

                      Ever hear of something called “voluntary association”, for which there are so many examples of that you’d have to be intentionally obtuse to claim unawareness?

                      but denying people the right to large-scale projects for the collective good is to deny them an element of freedom.

                      Right, and how would I accomplish that without the government? Denying people the right to do things, including large-scale projects, is what government is all about. Somehow, when government does it, you’re just prejudiced into thinking it’s probably awesome.

                      If we followed the requirements of many libertarians we’d only be allowed a form of capitalism that more closely resembles rudimentary bartering than anything like a modern economy.

                      Actually, that would probably come about more likely under a government, after central planning crashed an economy. Free people with choices can always create and use new mediums of exchange. When the government uses violence to insist on a monopoly on currency, and then crashes said currency, is when people start trading fish for loaves of bread, and what not.

                    4. How do 300 million people voluntarily associate? Or are they simply not allowed, because it would require doing things against the will of some of them?

                      Wouldn’t that also be the case for a cooperative effort of 10 million people? Or 100, or 10? Not everyone always gets his way–and that’s no excuse never to do anything collectively. Voluntary in terms of society means you get to participate on a level playing field and sometimes you won’t get your way. That’s just the way it has to be. Otherwise we’re stuck with bartering.

                    5. Tony said:

                      How do 300 million people voluntarily associate? Or are they simply not allowed, because it would require doing things against the will of some of them?

                      This statement is contradictory. People cannot be prohibited from voluntarily associating because it would require not doing the will of some of them. If it’s against their will to associate, then it’s not voluntary.

                      That’s just the way it has to be. Otherwise we’re stuck with bartering.

                      This statement is nonsensical. “We need compulsory cooperation, because, if we don’t, we’ll be forced to trade without a means of exchange.” That’s a pretty odd statement, and I don’t quite follow the reason from start to finish. Can you elaborate?

                    6. So in order to do large-scale things voluntarily (as you define it), what, people have to constantly be moving in and out of jurisdictions depending on whether they agree with a certain project happening in their current one? How do you fund the building of a dam that will affect a multistate area by voluntary cooperation as you define it? Surely there will be some who oppose the idea. Say it’s 3% of the potential taxed… should the 3% get their way and the dam not be built because the vote is not unanimous? How does the dam get built? Or will it just never realistically happen?

                    7. Tony said:

                      Say it’s 3% of the potential taxed… should the 3% get their way and the dam not be built because the vote is not unanimous? How does the dam get built? Or will it just never realistically happen?

                      How about the people who own the property and want to benefit from the dam, pay for the dam themselves? It’s that really so hard to freaking imagine? It’s like you can’t imagine anything being possible unless you’re pointing a gun at people’s heads.

                      On another note, at what point do people who love government power explain exactly how we know the killing fields of the khmer rouge will never happen again, Stalin’s famines, or the Great Leap Forward, or World war I, II, Vietnam, Iraq, Korea, etc? When do they guarantee us this peace and prosperity they promise they’re providing?

                      They don’t. They just make silly appeals to ignorance, and demand that people explicitly prove how everything must work out awesomely before they consider doing something else. If only they’d be so demanding with the status quo, which has produced practically every god awful tragedy I can think of in modern history.

                    8. Voluntary in terms of society means you get to participate on a level playing field and sometimes you won’t get your way. That’s just the way it has to be. Otherwise we’re stuck with bartering.

                      That makes no sense. None at all.

                    9. I’m all ears if you want to posit some other means of mobilizing resources on a large scale for collective purposes, but denying people the right to large-scale projects for the collective good is to deny them an element of freedom.

                      Free markets allow for exactly this. You just don’t get to practice slavery.

                    10. But we really aren’t allowed, say, a project on national scale, are we? Because you won’t get everyone to agree unanimously, even if it’s a project involving only 10 or 20 people. Most people think it’s fair in such situations to take a vote. To call democracy “slavery” is to say you want your way all the time and everyone else can go fuck themselves. And how that differs from an autocracy of you escapes me.

                      Some of us even find it not only practical, but freedom-enhancing to endow government with certain powers to direct resources on a large scale (fighting wars comes to mind).

                    11. Why won’t you give that mugger your wallet? What are you, some sort of autocrat?

                    12. Fighting wars (for defense) happens to be something that even libertarians agree is a legitimate purpose of government.

                      And you don’t need everyone to agree unanimously to get something done. If you did some bare bones research you would find that many bridges and other large scale projects have been built by privately, not by government. As in people voluntarily (there’s that word you don’t understand again) pooling their resources to get something done. I know you don’t believe it, but it is true. Look it up. (I know you will willfully ignore this because it goes against the narrative, but I’m putting it out there anyway)

                      Democracy is indeed slavery. It is the majority agreeing to use force against the minority.

                    13. Fighting wars (for defense) happens to be something that even libertarians agree is a legitimate purpose of government.

                      Special pleading. I wasn’t talking about “legitimate,” but “useful.” So you must agree that large-scale mobilizations by government can be useful. But what distinguishes fighting a war from any other mobilization with respect to individual choice and freedom?

                      You could say there’s no other way to fight an invading army than such a mobilization. I could say there’s no other way to deliver universal healthcare. One is legitimate and the other is not–not because of any consistent application of principle–but just because?

                    14. Every person has the right to self defense, and fighting war is exercising that right collectively.

                      People do not have a basic right to goods and services provided by others. There’s a word for that. Hmmm. Let me think…

                      Next you’re going to say police work is the same thing. It’s not. Police work for the courts, and the job of the courts is to resolve disputes without violence. That is a basic and legitimate role of government.

                    15. You’re doing it again. There is no difference, based on the principles you espouse, between forcing people to cough up tax money to pay for an army than to do the same to pay for healthcare administration. They’re paid for in exactly the same way. One cannot be evil theft and the other legitimate taxation. Calling one legitimate and the other not is to beg the question. I think healthcare is a legitimate function of government. Why are you right and I’m not? Because Ayn Rand say so? Or what?

                    16. large-scale mobilizations by government can be useful

                      Yes, large-scale mobilization by government *can* be useful. It can also be very destructive. Take the example of War powers, which few will claim is illegitimate. A government can efficiently and effectively mobilize people to fight a war of defense. However, it can also mobilize the populace to fight a war of conquest. Government can effectively mobilize large groups to oppress other groups. Arguments in favor of granting government this power must also recognize and accept the potential uses of this power.

                    17. Tony said:

                      Most people think it’s fair in such situations to take a vote

                      This is an appeal to tradition.

                      To call democracy “slavery” is to say you want your way all the time and everyone else can go fuck themselves. And how that differs from an autocracy of you escapes me.

                      Let me fix the last part for you:

                      To call democracy liberty “slavery” autocracy is to say you want your way popular policies, virtuous for no other reason but that, forced on others all the time and everyone else can go fuck themselves. And how that differs from an autocracy of you mob rule by a bunch of idiots who can’t find their country on a map escapes me.

                    18. [Most people think it’s fair in such situations to take a vote]
                      No Brian, this is ad Populum.

                  4. Why are you arguing against imaginary anarchists?

              3. You can have ethical principles without believing in magic.

                The you are clearly not a materialist, as you do believe in magic.

              4. “You can have ethical principles without believing in magic. Lots of people do. And they’re usually more morally virtuous people than those appealing to magic.”

                Not shitheads like you, though. All you’ve done is supplanted a mythical ruling entity which doles out universal morality and behaviorism with a tangible Phaoroh who does the same thing from a government hotseat.

      3. The point is a question would never have arrived at the Supreme Court if it were easy. And if it’s not easy, then either side could plausibly be right.

        Let me second the “bullshit” on this one. It reminds me of the “Teach The Controversy” business on Intelligent Design: there is no controversy except for the one ID proponents invented.

        Just because a dispute exists doesn’t mean the disputing party has a leg to stand on. It might, but it very well might not.

    2. shall not be infringed

      “So – infringing is OK then? Right? That’s PLAINLY what it says. Done.”

      1. The “not” is silent.

  10. I love how the living constitutionalists love concern-trolling about how originalism doesn’t solve all problems because people sometimes come to conflicting conclusions starting from originalist premises on issues like the scope of free speech and interstate commerce….but at least orignalists, unlike living-constitutionalists, don’t debate about whether there’s an Abortion Clause hidden in the penumbras or whether the constitutional allows a death penalty, etc.

    1. Exactly – of course human beings don’t always agree about the meaning of written things. But we go back TO THE WRITTEN THING for reference, or the arguments start to be about something else.

      At least doing that ties the argument to some unchanging thing. Otherwise it’s moving goalposts all the way down.

  11. On the other side is the doctrine known as originalism, which maintains that the Constitution should be interpreted according to its meaning at the time it was adopted.

    Originalism (and I used the term as distinct from textualism here) has it’s own sort of craziness to it though. Suppose tomorrow we ratified a 28th amendment containing the exact same words as the 14th amendment. Originalism states that these two identical passages of text would in fact have entirely different interpretation solely because one was adopted in 1868 and one was adopted in 2012.

    1. Age-ist!!!

    2. That’s not crazy. It’s just evidence that people who draft Constitutional amendments have a poor grasp of written English. The 14th amendment is about as clear as a 5th grade essay.

  12. Here’s something I have been pondering, on my own gnarled little tree of woe: every time I hear somebody talk about how The Founders could never have foreseen technological advances which “negate” various aspects of the Constitution (the Second Amendment being exhibit A), I wonder if those people are even aware that people like Thomas Jefferson and Ben Franklin (and I-don’t-know-how-many others) were for real successful practicing INVENTORS. The whole point of the exercise was to INVENT a form of nation which had never really existed anywhere before. The idea that they somehow believed the world would remain as it was forever is absurd and idiotic.

    1. How does technology “negate” anything in the 2d?

      1. SO EVERYWON SHOULD HAVE THEY’RE OWN NOOKS, RITE???!!11?

        I don’t believe it does. “Shall not be infringed” – and you read the writing at the time of the people who signed on to it – pretty clear to me it was a limit on govt, not on “we the people”. I CAN buy a fucking nuke if I want.

        In fact, if I want to by a thingy to stick on the end of my John Thomas, I CAN, because I’m PROTESTANT…wait, that’s Meaning of Life….never mind…

        1. I CAN buy a fucking nuke if I want.

          Simply owning a nuke arguably represents an immediate threat to others, like holding a gun to someone’s head with no intention of pulling the trigger.

          1. Let’s say that’s true. Where does the 2d say the right to keep and bear arms shall not be infringed unless owning the arms presents an immediate threat?

            1. If a man is sentenced to jail for treason (power which is pretty clearly granted to the government by the Constitution), where he can’t possess firearms, how is that not a violation of his 2nd amendment rights?

              1. It is.

            2. It is.

              Well then. My hat off to you sir for being consistent.

          2. The same argument can be made for guns. The presence of a gun increases the likelihood of a quarrel to escalate into a deadly shooting. It’s quite arguable that increasing gun availability by itself represents an increased threat to others.

            1. Which might be an argument for amending the 2d, but it isn’t an argument for ignoring the 2d.

            2. In that case, the presence of the gun only rises to the level of a threat if a quarrel occurs. And even then, it’s only a problem if the person being threatened isn’t deserving of the threat. But that’s only true if they weren’t deserving of being part of the quarrel to begin with, in which case a violation of their rights has already occurred, whether or not a gun is present.

              I’ll admit that my nuke argument has a weak point, but that wasn’t it.

              1. It’s one of society’s most basic interests to prevent homicidal and accidental death as much as reasonably possible. Sure someone’s rights are being violated when she’s punched in the face, but if the presence of a gun means she’d be dead instead, then I think the degree of the violation matters somewhat.

                1. The average person’s chances of being shot at any given time are approximately zero, so disarming the population is not reasonable.

                  1. Standard disclaimer: the 2nd Amendment does not allow for “reasonable” restrictions.

                  2. Well “at any given time” is a bit useless. Your needing a gun to defend yourself “at any given time” is quite a bit closer to zero, so what’s the point of the right?

                    We started a war because 3,000 people were killed. But 10 times that many people die by guns a year, and it’s not something society has any interest in doing anything about?

                    1. Well “at any given time” is a bit useless.

                      Then substitute “over their lifetime” if you wish.

                      Your needing a gun to defend yourself “at any given time” is quite a bit closer to zero, so what’s the point of the right?

                      Owning a gun doesn’t violate anyone’s rights.

                      We started a war because 3,000 people were killed. But 10 times that many people die by guns a year, and it’s not something society has any interest in doing anything about?

                      First of all, 2/3 are suicides. Second, murders and accidental discharges are punished. Finally, ending the War on Drugs is the only thing society can do to reduce gun violence, since the vast majority of murders are committed by gang members against other gang members with illegally obtained weapons.

                    2. I’d be perfectly happy ending the drug war to see what effect that has on gun death rates.

                      If we still have one of the highest in the world after that, then could we possibly consider the nearly unmatched level of gun proliferation as a potential cause?

                    3. We started a war because 3,000 people were killed. But 10 times that many people die by guns a year, and it’s not something society has any interest in doing anything about?

                      A. Two-thirds of those were voluntary.

                      B. Society has murder and manslaughter laws and courts to do something about the issue.

                      C. A and B don’t change what the 2d says.

                      D. The Constitution provides a legitimate way for society to address the keeping and bearing of arms if it wants to.

                    4. You don’t say we shouldn’t make roads and bridges safe because we have insurance to deal with it. Prevention is certainly in society’s interest.

                    5. Poor analogy is poor.

                    6. Prevention is certainly in society’s interest.

                      Not necessarily. How many crimes could we prevent each year by scrapping the 4th and 5th Amendments?

                    7. We started a war because 3,000 people were killed. But 10 times that many people die by guns a year, and it’s not something society has any interest in doing anything about?

                      Your problem is that you are of mind that restricting law abiding citizens’ 2A rights is the only thing we can do to “do something.”

                    8. We started a war because 3,000 people were killed.

                      “We” did not.

                2. It’s one of society’s most basic interests to …

                  “Society” does not have interests.

                  1. Why not? You people are obsessed to the point of magical thinking with individual human agency. It makes just as much sense to talk about the interests of a society as it does the interests of a corporation or the interests of a person, or the interests of a cell in a person for that matter.

                    Stop trying to kill the versatility of language.

            3. The presence of a gun knife increases the likelihood of a quarrel to escalate into a deadly shootingstabbing.

              So…?

          3. —like holding a gun to someone’s head with no intention of pulling the trigger.—

            How is this an immediate threat in any sense.

    2. Computers and TV and radio didn’t exist, so the first amendment doesn’t apply to Reason or CNN or MSNBC or fox because HURR DURR HURR HURRRRR.

      Yeah. They were part of the Enlightenment – they did amazing shit that had never been done. So not foreseeing teh innertoobs and smart bombs = LIVING DOCUMENT! (communication/”speech” technology is the one I hear most, closely followed by “arms” related…)

      1. And if technology is a game-changer, then there’s an *amendment process* to make the necessary adjustments to the constitution.

        Most amendments have been, for better or (often) worse, in a “progressive” direction, but that simply isn’t enough for the progs, because some of the kind of amendments they would support simply won’t be adopted by Americans through the amendment process. So we must have a living constitution which changes meaning according to the whims of its interpreters, otherwise we wouldn’t be able to do what we want, waah!

        1. Exactly this. “Really, the document hasn’t kept up?” [I’d argue it’s perfectly fine as is, less some bad amendments] “Then AMEND IT, for fuck’s sake!”

          But don’t just make up shit. I know, I know – I run a fool’s errand.

        2. some of the kind of amendments they would support simply won’t be adopted by Americans through the amendment process

          They are impatient. It’s always a concern when someone feels so strongly about forcing their policies on others that they think subverting existing law to accomplish this is justified.

  13. How does technology “negate” anything in the 2d?

    “Only weapons technology which existed at the time of signing is covered. Those guys could never foresee guns which shoot thousands of bullets in a second!”

    1. Bayonetting is so gruesome, I’m actually glad the bayonet mounts are BANNED. Cause – gruesome. And never foreseen. Unforeseen, really. Plus – gruesome.

      So NOT CONSTITUTIONAL.

  14. Like nobody who lived through the French and Indian Wars, and the Revolution never said to himself, “Godammit, it would be really be handy to have a gun which shoots more bullets in less time!”

    1. Now, look here, Patriot! Your little “harpshooters” with their rifled barrels are just not fighting FAIR! The old smoothbore is no match for that Assault Style flintlock, PLUS you cheat and shoot our officers! NO FAIR SHOOTING OFFICERS!

      Also, the hiding behind the trees – BAD FORM!

      1. Captain Hook, Revolutionary War Reenactor

  15. The same argument can be made for guns. The presence of a gun increases the likelihood of a quarrel to escalate into a deadly shooting.

    It’s a stupid argument, but that won’t stop people like you from making it.

  16. T o n y,

    If you’re a moral nihilist, what possible grounds do you have for objecting to libertarianism and favoring liberalism?

    1. Check your premises.

      1. Yes and?

        1. I’m not a nihilist. At least not for practical purposes.

  17. “On one side is a school of thought known as living constitutionalism, which holds that the document’s meaning must evolve to meet modern needs. “

    And yet, all those “modern needs” ever amount to are “MOAR TAXES MOAR GOVERNMENT!”

  18. A proper government derives it’s power from the people. Let’s say there is pure anarchy, no government, and we are neighbors – neither one of us could even go to work because our homes would be robbed while we were gone. We make an agreement – I will watch your house while you go work and you watch mine while I go work. Works out pretty good, but one of us always has to be home – sooo, we hire Joe to watch our houses. And, we give him a title – sheriff Joe. We have now established a legitimate government, Joe’s authority is derived from the people he works for – he can watch and protect our homes because we can. Joe can NOT go arrest someone because we don’t like the fact that they have a funny plant growing in their yard – we don’t have that power, so Joe can NOT derive that authority.

    1. Extend the logic to neighbors numbering in the millions, and you see why either anarchy would be very bad or fail to maintain itself, and that democratic government is the manifestation of voluntary association on a large scale.

    2. Government must not, however, derive its power from simple majority whims. Otherwise – tyranny of majority.

      Case study: The Killing Fields.

      1. You don’t even have to go that gruesome. Case study: Jim Crow.

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  20. If you support an originalist interpretation of the constitution, you are an American in political philosophy. If you oppose an originalist interpretation of the constitution or oppose the constitution itself, then you are an opponent of the American way.

    The federal government is quite obviously operating far in excess of its constitutional bounds. Not only politicians, but also the management at various federal agencies, are worthy of scorn and contempt. But while many might agree with that, I think it should extended further – to “Americans” who exchange their freedom for government giveaways and to “Americans” who choose to be lazy and ignorant regarding their roles as citizens. The willfully stupid are are worthless as the politicians they elect.

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  22. “A well-regulated Automobile Industry being necessary to the commerce of a free State, the right of the people to keep and own Automobiles, shall not be infringed.” Must the people be affiliates of the automobile industry in order to possess autos? What purpose is there in insuring the auto industry may have autos without which there would be no such industry? Or guaranteeing a militia may have arms which is the primary criteria to be termed a militia?

    The purpose is to insure government would not possess monopoly force, that citizens in possession of their own arms would be able to oppose tyranny. If the population wishes to wait until the despot is entrenched to consider acquiring arms, you have waited too long. The able-bodied male population of fighting age are considered the unorganized militia as opposed to the regular armed services and National Guard which are select militia employed by government. The unorganized militia called forth for repelling of despotic government, and is the militia referred to in the 2nd. That’s the efficient explanation of the 2nd Amendment.

    1. The constitution does not permit armed insurrection. Sorry.

      If it did, don’t you think it should have provided a method of determining when armed insurrection was appropriate? Or is it just when redneck dumbfucks decide they’ve had enough?

  23. Additionally – There’s an enormous litany of history behind the principle. Don Kates is one of those who’ve objectively written about both the amendment and gun/criminology in general. Here’s a primer:
    http://www.constitution.org/2l…..56kdia.pdf
    http://www.constitution.org/2l…..53-2nd.pdf

    For discussion related to crime and gun use in various societies, the best read I’m aware of is David Kopel’s “The Samurai, the Mountie and the Cowboy”. Denser than most people in a blog society have patience for anymore, it’s erroneous to consider yourself informed by simply grabbing onto specious statistics trotted out by both sides without committing yourself to a bit of effort.

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  26. largely organized around two competing ideas. On one side is a school of thought known as

  27. largely organized around two competing ideas. On one side is a schoo

  28. United States Constitution, which was then still being considered by state

  29. On one side is a school of thought known as living constitutionalism

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