"Friends of Liberty are Warmly Disposed …

to any decision that favors freedom against authority, even against representative government. The student of the Constitution requires something more ...."

|The Volokh Conspiracy |

A good line from Louis Henkin, writing in 1971. His "something more" is "a workable accommodation of competing values properly achieved and reasonably justified"; others might say "an understanding of the original meaning of the Constitution, both those parts that secure freedoms and those that secure government power"; others might say "a focus on the traditions of the American people, and on the precedents that embody those tradition." But in any event, he is surely right that not all restraints on liberty, even all foolish or immoral ones, are unconstitutional, and that the Constitution is aimed at securing not only liberty from governmental excesses but also other "competing values" as well.

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  1. In other words:
    The Constitution does not enact Mr. Spencer’s “Social Statics”…or any other canonical work of political philosophy.
    There is loads of room for the government to establish values other than negative liberty, if that’s what the people via their elected representatives decide.
    Too bad that so many people have a tantrum every time this principle conflicts with their desire to hasten the progressive utopia, and run to the courts when the legislative system doesn’t give them what they want.

    1. The Constitution does not enact Atlas Shrugged or Wealth of Nations either.

      As if the tantrums of so many originalists are any less policy-based. As can be seen by how many are willing to throw away federalism the moment anyone says immigration, or invoke war powers about an invasion at the border.

      1. Please favor us with a list of all the libertarian/paleoconservative lawsuits filed in the last 50 years asking the courts to proclaim a never-before-recogonized right.
        This did happen in the Lochner era, which occasioned the line about Spencer; but in my lifetime, it looks like a leftward moving ratchet is the only tool in the Court’s toolbox.

        1. Nice framing, but the legal instrument the right uses is contracting the framed powers of the government, and y’all sue about that just as much. Same trick, different part of the Constitution at play.

          It’s fine to think you’re correct, but claiming some moral high ground doesn’t wash.

      2. Originalism’s claim is that the Constitution does, at least, enact the Constitution.

        1. It’s claim is that the Constituion can only be exchaustively directive; that there is on other legitimate interpretation of its language.

          1. As I’ve pointed out before, language is a mechanism for transmitting meaning across time and space, but it requires for its functioning a recipient willing to accept the transmission.

            There are plenty of approaches to figuring out the meaning of the Constitution but they are all of them variants of originalism, because they’re trying to figure out what it means, which, as a normal matter of the functioning of language, is inevitably what it meant. They’re attempting to receive that signal.

            The defining characteristic of living constitutionalism is a rejection of the idea that you have to acknowledge the meaning of the Constitution even where you don’t like it. It’s deliberately shutting off the receiver because you don’t like the signal.

            That’s why it’s so peculiarly frustrating trying to debate living constitutionalists. You can’t get through to somebody who has already shut off their receiver, and is dedicated to the idea that it’s legitimate to just substitute in a new meaning if you don’t like the meaning of what’s said to you.

            1. Language has is a method of tranmitting ideas, not just meaning.

              You glide right over your assumption that what the Constitution means must be what it meant. That is not clear in terms of Constitutional intent or purpose.

              There are lots of things living constitutionalists wish were in the Constitution that isn’t there. And yet how can that be true when originalists keep insisting that’s wrong??

              Yeah, it would be frustrating to try and convince someone that they are in bad faith.

              1. No, I didn’t glide over that, it’s a fundamental premise of my argument: You can’t transmit meaning if the meaning somehow changes en route depending on what the person you’re transmitting it to would rather it be.

                In the normal functioning of language, “means” = “meant”; Written documents don’t change their meaning over time, they continue forever to mean what they meant when they were written. Success at interpreting a document is measured at how good a job you do at determining what was meant.

                “There are lots of things living constitutionalists wish were in the Constitution that isn’t there. ”

                No, there are a lot of things living constitutionalists wish were in the Constitution that they don’t presently think they can get away with claiming are in it. Not at all the same thing.

                Back in the 70’s, any of your living constitutionalists would have denied thinking that the 14th amendment mandated SSM. They were pretty vehement about denying even the ERA mandated it.

                Today, they’re equally vehement that the 14th amendment DOES mandate SSM. What changed in the meanwhile?

                Only what they thought they could get away with.

                1. Meaning sure can change en rout without destroying the purpose or intent of a work.
                  As I said, you can’t see the ideas for the meanings. That may be correct, but it’s hardly neccessarily so.

                  If you don’t want meaning to change, we have ways to write to do that. Those ways existed back in the 18th century as well. But the language of the Constitutional is sweeping, not exacting.
                  Originalists argue that was not design but rather accident of drafting.

                  Written documents don’t change their meaning over time, they continue forever to mean what they meant when they were written.
                  This is just not true. Authors have always known this.

                  Only what they thought they could get away with.
                  Or, America’s understanding of personhood changed. But I know better than to offer you alternate scenarios than the bad faith of your political opponents.

                  1. “If you don’t want meaning to change, we have ways to write to do that.”

                    Yes, and writing things down is one of those ways. It is in fact the precise reason for writing laws down.

                    We’re not talking about confusion here, or a mistake: This is the exact disagreement that separates originalists and living constitutionalists: Originalists apply the normal rules of language to the Constitution, and living constitutionalists reject those rules when they produce meanings they don’t want to accept.

                    1. Your thesis that everything that is written down can only be intended to transmit exact and unchanging meaning is just not true.

                      You also continue to conflate meaning with ideas.

                      Is the idea that these men whose letters were overfilled with evocative and prose might have added some sweep and poetry to their Constitution is so impossible?

                    2. And then what of the 14th Amendment, which realigned a great deal of the Founders vision? How does that new understanding interact with the old? These things cannot be integrated by mere originalism alone; you need a bit of mental scope to do that task.

                    3. One mistake here is the failure to specify how “meaning” is defined. Originalism tends too often, IMO, to take the specific instances that existed at the drafting as the only possible interpretation, while ignoring the possibility that a provision embodied broader principles whose application to specific issues might change over time.

                      Did the drafters truly not understand that times would change, that we would learn new things, that situations that did not then exist, or come to mind, would never appear? That’s pretty implausible.

                      Is it not possible that some of the language is imprecise with respect to modern conditions, leaving us to figure things out? Pretty implausible again.

                    4. “Your thesis that everything that is written down can only be intended to transmit exact and unchanging meaning is just not true. ”

                      A writer can only use the meaning that exists at the time the words are written. The fact that in the future, other people use the word to mean something else can never, never be what the original writer intended.

                      A writer using “toilet” in 1800 meant the act of getting dressed, not a fixture into which you pee and poop.

                    5. Sarcastro, the Constitution isn’t poetry, it’s law. Fixity until amended is one of the chief virtue of laws, heck, it’s one of the chief virtues of written text in general. Even if some people who are playing with language instead of seriously using it might want to do something else.

                      Bernard, of course they understood times would change. Hence Article V.

                    6. A writer can only use the meaning that exists at the time the words are written

                      Who says? This is not logically required. Indeed, it is an illogical requirement; anyone who is educated is aware that meanings change and writes with that in mind.

                      Do you write things preemptiviely enraged at future readers for not doing the proper historical reasearch to understand your words in cotext? Or do you sweat the stuff that needs to be precise, and allow that other stuff will change as it may.

                    7. But they didn’t need Article V if they expected their words to be reasonably interpreted in the light of changes.

                      No Amendment was needed to create an Air Force.

                    8. “But they didn’t need Article V if they expected their words to be reasonably interpreted in the light of changes.”

                      And yet, they included Article V, therefore….

                      “No Amendment was needed to create an Air Force.”

                      Say, are you somehow under the impression that originalists think all modern practice is constitutional? Because that’s the only way that statement would appear relevant.

                    9. Brett, that they wanted an amendment process for some things doesn’t support your argument in any way shape or form. It absolutely does not mean that they din’t expect the original, unamended language might be applied in ways they did not anticipate in the future.

                      My comment about the Air Force is relevant because it shows that we are allowed to deal with changing conditions and new facts and knowledge without needing an amendment.

                  2. “anyone who is educated is aware that meanings change and writes with that in mind”

                    Your kidding, right? People write using words with current meanings.

                    Using my example again, you are saying that a writer discussing the Queen’s beautiful toilet in 1700 is aware that toilet will mean in 300 years what “chamber pot” meant when he wrote. Ludicrous.

                    1. You’re kidding, I think, Bob.

                      You are saying that “due process,” is exactly whatever procedures and protections people in 1790, and again in 1868, thought constituted due process, and we are forbidden, absent an amendment, to improve those procedures to make them more equitable.

                      Indeed, what would an amendment say?

                2. What changed in the meanwhile?

                  Only what they thought they could get away with.

                  Brett,

                  Not long ago you complained that liberals couldn’t believe that there are those who honestly disagree with them. Yet this is a perfect example of something you do repeatedly, almost constantly – accuse those who disagree with you of dishonesty, or of ulterior motives or the like. Over and over again you do that which you accuse others of: arguing in bad faith, refusing to accept legitimate disagreement.

                  Not only is this odious behavior, it betrays the weakness of your own thinking.

                  Why couldn’t views of the 14th A. and SSM change?

                  First, we have no idea what hardly anyone thought of SSM in the 1970’s because it was not a subject on the radar.

                  Second, our understanding of homosexuality has changed substantially since then. (And even more since the 14th was ratified.) So it is quite plausible that someone could, in perfect good faith, change their view on this question over the 40+ year period you describe.

                  But you can’t imagine that. Why, I don’t know.

                3. Written documents don’t change their meaning over time, they continue forever to mean what they meant when they were written.

                  Brett, I have just finished reading a wonderful little book, As a City on a Hill, written by Princeton intellectual historian, Daniel T. Rodgers. I think you would like the book, and profit by reading it.

                  In brief, it’s a tale about how the meaning of John Winthrop’s 1630 phrase evolved over time, until in the hands of Ronald Reagan’s speech writers it came to mean exactly the opposite of what Winthrop meant when he wrote it. It’s a fascinating story of the twists and turns of meaning attending that Bible-sourced notion, as it was applied and re-applied by various users in different contexts.

                  Along the way, Rodgers introduces (and, I suggest, proves) the point that if you insist that the meanings of critical texts never change, you really can’t have a public life as a nation. I hadn’t thought of that. It relieved me somewhat of a grudge I had long held against Reagan, for perverting, as I saw it, his listeners’ understanding of a history with which most of them would be unfamiliar.

    2. I accidently clicked on the “review” flag on this comment as the page was reloading. I hope nothing happens. Sorry!

  2. The Federalist Papers are utterly fascinating to read and I recommend them to everyone who cares about the Constitution. Its goals definitely included increasing government power.

    1. I recommend the combined edition that also includes the anti-Federalist papers. (That’s what I bought my son.)

      Otherwise you’re only reading one side of what was, after all, a debate.

      Yes, the goal was to increase the federal government’s power… to a point that would, by modern standards, be accused of being anarchism!

      1. I’ve never understood why the hopes of the Constitution’s advocates were considered more accurate as an account of its meanings than the fears of its opponents.

        1. Hamilton in particular appears to me to have been more than a little dishonest; I think he saw himself as planting an acorn to get an oak tree, because nobody around him would have agreed to the oak tree.

          1. People don’t give the Anti-Federalists enough credit, they saw much of the problems down the road ( Brutus was often right, especially about the courts). I recommend the book “What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution”

            You see, we always hear that the anti-federalists were just against the Constitution. And since the Constitution is good (mostly) then the logic is that the Anti-federalists were wrong/bad. This is not the case, they were just a brilliant but on the losing side of an ideological debate. So, I recommend reading what they were *for* not just what they were *against*.

            1. Well, that’s the thing. Maybe they were right about where the Constitution would lead, and, since we adopted it, there can be no Constitutional objection to our going there.

  3. The Constitution is not the same as the Libertarian Party platform.

    But neither is it neutral between “capitalism” and socialism.

    Left-wing critics of the Constitution focus quite understandably on the protections of private property against political looters.

    A few weeks back I compiled some anti-Constitution articles from the socialist Jacobin magazine, here is one of them now:

    https://www.jacobinmag.com/2011/03/burn-the-constitution

    “It stands to reason that a document drafted by a coterie of gilded gentry, openly contemptuous of democracy and panicked by what they saw as the mob rule of the 1780s, would seek to constrict popular sovereignty to the point of strangulation.”

    “Thus, brilliantly and subtly, the system they built rendered it virtually impossible for the electorate to obtain a concerted change in national policy by a collective act of political will.”

    “At this very moment, when expansionary monetary policy and debt relief for homeowners are demanded by the Left to address the ongoing, grinding social crisis, it should not be forgotten that “a rage for paper money” and “an abolition of debts” were precisely the sorts of “wicked project[s]” that James Madison, writing in Federalist No. 10, specifically hoped his Constitution would rule out.

    “You would almost think Madison had been listening to Glenn Beck.”

    1. I’m not a huge fan of Jacobin, But it hardly seems debatable that the Constitution seeks to “to constrict popular sovereignty.”

      “To the point of strangulation” is going too far, but it certainly does an awful lot to restrict it, and those restrictions are widely praised on the right.

      Did they render it “virtually impossible for the electorate to obtain a concerted change in national policy by a collective act of political will?”

      Well, the amendment process is cumbersome to the point where near unanimity is required, and the Senate is, by design, a major obstacle to the popular will.

      As to the third quote, well, I’m no MMT advocate, but paper money in general is just fine (so long as we keep the popular will, in the form of people like Stephen Moore and Herman Cain, away from its management.)

      So I’m not sure what is so wildly inaccurate, nor do I understand what is wrong with criticizing the Constitution. Whatever else it is, it is not divine revelation.

      1. I didn’t say it was wrong to criticize the constitution, but rather that it’s not neutral as between the Wealth of Nations and the Communist Manifesto. It doesn’t enact any particular book of economics, but it’s closer to some than others.

        1. Then what was the point of your quotes? The only property rights issue I see mentioned is abolition of debts.

          Now, I don’t know what Jacobin was talking about, but the debts that people are talking about wiping out are student loans which are, as you know, not dischargeable in bankruptcy.

          Maybe you think that’s OK, but it surely is worth discussing. After all, if Donald Trump can have his debts abolished that way then why not student borrowers?

          1. I could be wrong, but “debt relief for homeowners” (as Jacobin put it) was often a euphemism for forcing the banks to “renegotiate” with the person so they could keep their home and not pay so much, or put off paying beyond what the contract provided.

            I’m no bankruptcy expert, but I had thought that under regular bankruptcy rules, if a homeowner declares bankruptcty in order to avoid his mortgage payments the bank would get the house, as opposed to the Jacobin play where you stiff the bank *and* keep the house, too.

            As for student loans, I don’t see how an originalist conception of the Constitution would allow for those – morally it’s the government as pusher persuading young people to take out at loans which the private market might not have given them (the private market, for example, might give a loan for an engineering degree but not for a sociology degree). So just as a pusher is implicated in the junkie’s problems, the government is implicated in the problems of the irresponsible borrower if it actually encourages the irresponsible borrowing in the first place. In short, we’re not dealing with actual market transactions such as the Founders were worried about.

          2. Here are the three Jacobin articles I linked in an earlier thread:

            https://reason.com/2019/03/29/does-the-us-constitution-offer-stronger/#comment-7739481

            And is another quote from those articles:

            “With the ratification of the Constitution, this class-stratified system was protected by the supreme law of the land.”

            “Unfortunately, the book that treats the Constitution as a political extension of the capitalist mode of production, as an organic function of this historically developing whole, while not losing sight of how it is also a product of a particular class alliance and of the real individuals who gathered in Philadelphia, remains to be written.”

            1. Eddy, you should probably ease up on Jacobin articles. Marxists, along with libertarians, ironically, are among the folks who seem to believe you can start with axioms, and then build theories to prove facts, including facts of history. That’s what your Jacobin quotations are trying to do. And you can’t do that.

              If you want to know the facts of history, you have to read original sources, not present-minded retrospectives—let alone present-minded retrospectives derived from pure (no evidence need apply) reason. If you read Madison on democracy, for instance, you don’t find what Jacobin is telling you about the founders. Instead, you find something much subtler, founded in push and pull of experience. What you will discover, for sure, is that Madison was not fearful of democracy. However cautious he was about its potential for misuse, Madison was one of history’s greatest pro-democracy advocates. On the evidence of the historical record, that’s not a close call, it’s obvious

              1. You’re missing the point of my quotations.

                Socialists find the Constitution an obstacle to their plans.

                They speak from experience, since socialists of various stripes have been straining against the limits of the Constitution for quite some time.

                I can illustrate this by the Socialist platform for 1912:

                “The abolition of the power usurped by the Supreme Court of the United States to pass upon the constitutionality of the legislation enacted by Congress. National laws to be repealed only by act of Congress or by a referendum vote of the whole people.

                “Abolition of the present restrictions upon the amendment of the Constitution, so that instrument may be made amendable by a majority of the voters in a majority of the States….

                “The calling of a convention for the revision of the constitution of the U. S.”

                https://bit.ly/2CMkoip

                Socialists *are* fairly ignorant, but one thing which they are likely to know is the history of their own movement and the setbacks that movement has received. They have not experienced the Constitution as a document which is neutral as between socialism and freedom.

      2. “Well, the amendment process is cumbersome to the point where near unanimity is required”

        A common misconception. What the amendment process requires is not a level of support (among the people) approaching unanimity, but rather that the support be widely distributed.

        If a modest majority of the population support an amendment, and that opinion is uniformly distributed across the nation, then every Representative and Senator, and every state legislator, will find that a modest majority of their constituents favor the amendment, and the required supermajorities of legislators, not voters, will be easily achieved.

        OTOH, if 75% of the voting public support an amendment, but that support consists of everybody in half the states supporting it, and nobody in the other half, that amendment will be doomed from the start, because only 50 Senators will have constituents favoring it.

        What Article V is probing is how the support is distributed, not how much support there is.

        1. What has actually shut down the amendment process is that the political class in America, from which the Senators and Representatives are almost always drawn, has become insular and distinct in their opinions from the general population, and thus no longer much care about the voters’ opinions on some topics where there is more than adequate and well distributed support to give almost all of them a majority of constituents favoring a given amendment.

          The balanced budget and term limits amendments, for example. They actually stage managed the votes on those, bringing multiple versions to a vote, so that everybody who needed to could vote for one or another version, and report back to the voters that they’d tried to pass it, without any one version every reaching the critical number of votes.

          That’s not the sort of thing that happens in a healthy democracy…

          1. What has actually shut down the amendment process is that the political class in America, from which the Senators and Representatives are almost always drawn, has become insular and distinct in their opinions from the general population, and thus no longer much care about the voters’ opinions on some topics where there is more than adequate and well distributed support to give almost all of them a majority of constituents favoring a given amendment.

            This is bizarre coming from you, a hater of democracy.

            Yes. The balanced budget amendment was voted down, and rightly so. Do you favor direct democracy when it produces results you like?

            1. Nothing bizarre about it. Democracy in America is slowly failing, due to people learning to game the system to prevent the voters from kicking them out.

              For instance, we didn’t originally have pre-printed ballots in America, and thus “ballot access” couldn’t be used to keep somebody from effectively running for an office. But now multiple states don’t just pre-print the ballots, they outlaw write-in votes. And ballot access has become a major way of controlling who can gain political power.

              There are a lot of things like that going on, to manage elections in favor of a relatively small clique of power holders, who curate who gets to join them.

              The balanced budget amendment wasn’t just “voted down”, as I noted: It was brought to a vote in multiple versions, each of which failed to get enough votes to be sent to the states, because votes on each version were coordinated so that Representatives could pretend to support the amendment without any risk of it getting enough votes.

              A deliberate sham of a process, to make sure an amendment the people, but not their ‘representatives’, liked, would go nowhere.

              1. Nothing bizarre about it. Democracy in America is slowly failing, due to people learning to game the system to prevent the voters from kicking them out.

                I agree with you that democracy is slowly failing.

                I suspect we disagree on the reasons we think so, though “gaming the system” is part of it.

        2. Ah. The magic of geography strikes again.

          Indeed, it is the mystical belief in the value of acreage that creates, as you concede, a major obstacle to the popular will.

          Because your notion of widespread support is somehow limited to widespread geographic support. You would be revolted if, for example, some ethnic or religious groups were give political power wildly disproportionate to their numbers. But somehow that’s wonderful when the group granted such powers is “residents of Wyoming.”

          This is bizarre. Wyoming is some lines on the ground. It began, from the US point of view, as a territory created and demarcated by Congress. It is, like most states, a creation of the federal government.

          Widespread support ought to mean just that – favored by a large majority of the electorate, not “favored by a large majority of randomly chosen voters.”

          1. “You would be revolted if, for example, some ethnic or religious groups were give political power wildly disproportionate to their numbers.”
            Its different Anyone can move to Montana. The population mix in 1990 is not the same as 2020.
            I can become Bob from Montana anytime I want. I can never be black.

            1. Right, Bob. Move to Montana. That is a hopelessly lame argument.

              Besides, you can also change religions if you like. Does that make it OK to say that Southern Baptists and Jews should get equal representation to assure widespread support?

          2. Yes, the magic of geography, which is fundamental to any federation. Not matter how much the left would like to rule the entire country out of a small fraction of it.

            That’s what it really comes down to, after all: The left has developed a wonderful formula for taking control of cities, and is frustrated that geography translates into that not meaning you get to control the whole country, including the places where you’re unpopular.

            These people over here ruling those people over there, against those people’s will, has always been recognized as a form of tyranny, except when “these people” are leftists.

            The magic of geography is why the US doesn’t also call the shots in Canada and Mexico, despite being most of the population of North America.

            1. Because of settlement patterns, the lines of the map represent different cultures. Also, because the lines on the map define the reaches of lawmaking, these cultural differences take on a path dependency and are perpetuated over time. Germany and France are just lines on a map, but quite different, in the end, even if Alsace-Lorraine has shifted a time or two. The same goes for states. Wisconsin is quite different from Illinois, overall, even if the border region shares many similarities.

              1. Because of settlement patterns, the lines of the map represent different cultures.

                Sometimes yes, sometimes no. The lines defining most of the states are wholly arbitrary from a historical point of view. The distinction between the Dakotas bears no resemblance in significance to that between France and Germany. The “federation” business is a fantasy. Yes, I know it’s the law. But that doesn’t make it sensible.

                Are you seriously going to claim that the Dakotas, or Alabama and Mississippi, have cultural gaps that match those of France and Germany? They don’t. There is barely any difference at all.

                And of course, EU members have vastly more sovereignty than states in the US. Germany can’t make national policy for France, yet a minority of voters, strategically located in small states, can dictate national policy in the US. That’s ridiculous.

                1. Let me be clear here. I’m all for decentralized control over state and local matters.

                  But when it comes to national policy I see no justification for giving some voters disproportionate power because of the state they live in.

                  Take the fundamental national policy question of going to war. Why should that decision be more heavily influenced by some voters than others? Why should a group of 600,000 people in Wyoming have more say than a randomly chosen group of 600,000 in California?

                  (Again, please no, “that’s the law” response.) I know that. am arguing that the law makes no sense.

                  1. I see a difference between “disproportionate” power to block, and “disproportionate” power to act. It’s the former that I’m defending.

                    You’ve got the House to make sure only things that are popular in terms of raw numbers however distributed get done, and you’ve got the Senate to make sure only things that are popular in a distributed manner get done. BOTH chambers have to agree on legislation. The Senate can’t, by itself, enact measures that don’t have actual majority support, and the House can’t, by itself, enact measures that only have local support.

                    Speaking in the context of constitutional amendments, you don’t (I, at least!) don’t want amendments that are wildly popular over here, and wildly unpopular over there, to be easy to adopt. You (I, at least!) want amendments that are widely popular. You don’t want the equivalent of a “nobody living within 50 miles of the sea shall be subject to federal taxation” amendment to be feasible.

                    But the current obstacle to constitutional amendments isn’t the disproportionate representation of some states in the Senate. It’s that Congress no longer has any motive to originate amendments with the Supreme court ‘amending’ the Constitution in ways political majorities support.

                    1. I see a difference between “disproportionate” power to block, and “disproportionate” power to act. It’s the former that I’m defending.

                      Nonsense. If you have disproportionate power in a legislature you have disproportionate power to do either. Bills pass, or don’t pass. And this notion of blocking presumes that there is no status quo, or that it is somehow privileged. Take a bill that will change the tax laws. Well, there is a tax code in place. What is so wonderful, so principled, about being able to block changes? And this does not even address the EC.

                      Speaking in the context of constitutional amendments, you don’t (I, at least!) don’t want amendments that are wildly popular over here, and wildly unpopular over there, to be easy to adopt. You (I, at least!) want amendments that are widely popular. .

                      Yet you are happy, presumably, with amendments Baptists love and Jews hate, because you advocate no such protections for religious minorities, as opposed to geographic ones.

                      I don’t care where an amendment is popular or unpopular if, say 75% of the country supports it. By which I mean 75% of the people, not of the geographic area. Make it 80% if you like.

                      You don’t want the equivalent of a “nobody living within 50 miles of the sea shall be subject to federal taxation” amendment to be feasible.

                      I’m not aware of any such proposals. Indeed, most regional differences of opinion are not based on real geographic concerns at all, but on similar views on national issues within a region. That’s distinctly different from your silly coastal taxation hypothetical. That those should be respected if concentrated but not if they are diffuse is not something that makes sense.

                      If we take half the population of AL and move it to CA in exchange for an equal number of Californians, and AL then elects two Democratic senators, then suddenly those former Alabamians don’t count, in your view.

                2. You completely skipped the 2nd point of my comment. That the lines on the map, which define political control, lead to differences between the states that further perpetuate the differences as time goes on. For example, Colorado will continue to be different than Wyoming as one has legal weed. I also notice that you skipped that I mention Illinois and Wisconsin in the same post, and that I’m not just talking about countries. Illinois and Wisconsin are similar as both American states, but quite different culturally, overall. This is expressed, for example, in the level of corruption tolerated in IL, but not in WI.

                  1. Sorry I skipped it. Yes , there are sometimes the kinds of differences you describe, though comparing them to the differences between European countries, especially France and Germany, is a mega-gigantic exaggeration.

                    And of course there is the question of how those cultural differences ought to play into national policymaking. Let them each make their own decisions about weed, but when national policy is involved let’s give each individual voter in each state the same voice, rather than lumping them into state-based aggregation.

                    OK. Now will you address my response to your first point?

            2. Brett, all this stuff about federation, and how rural areas risk falling under the tyrannical boots of urban areas, seems self-contradictory to me. You are kind of playing tricks with boundaries, I think. A lot of issues cut two ways, with contested areas of interest which apply differently across the boundaries you seem to think should separate them.

              Also, when you say urban areas want to dominate rural areas, aren’t you mainly objecting to the way the federal government manages lands which lie within federal boundaries contained in more-rural states? Why shouldn’t the national majority call the tune for what happens on national lands, no matter which states they are in?

              Other than that, can you offer some examples of the urban majorities’ will to dominance in rural areas—maybe something which applies only to conditions in the rural areas, as opposed to mutually contested stuff that applies in both places, like gun issues? Seeing a few such examples might help me understand where you are coming from.

              1. Let me add to Stephen’s comment that there are ample examples of rural areas trying to dominate much more populous urban ones.

                Many of those who are the strongest advocates of decentralizing government to the state level lose their zeal when a city passes ordinances the state legislatures don’t like.

      3. “amendment process is cumbersome to the point where near unanimity is required”

        That “near’ is doing a lot of work. 2/3 and then 3/4 is a super majority. not near unanimity.

        The Civil War amendments, income tax, popular election for the Senate and women voting were easily and quickly passed once ripe because the addressed issues that a super majority thought important.

        The “once ripe” is important. A woman voting amendment in 1818 would have been laughed at. In 1918 it roared through passage.

        Hard does not mean impossible.

        1. That’s 2/3 of each house of Congress, so 2/3 twice. Then 3/4 of state legislatures.

          Pile up those fractions and you get pretty close to “near unanimity.”

          It is telling that you list the Civil War Amendments, which required a bit more than just legislative super-majorities to pass, and then only three more, all passed within a short period.

          1. And, again, I point out to you, a super majority of legislators doesn’t require a super-majority of popular support. It just requires a modest majority that isn’t spatially concentrated.

            I’ll agree with you that the Civil War amendments are not valid references for the ease of amending. They were ratified in the South at gun point. Literally so, in some cases there were Union soldiers present in the legislative chambers during the votes.

            That period of our history is not a good reference for any sort of constitutional or legal practice.

            1. And again I say to you that I see no logical reason why spatial diversity of support is more important than religious diversity, or ethnic, or age-based, or professional, or education or income-level diversity.

              There are lots of states, pace mad_kalak, that aren’t really all that different from each other. Get strong support in Oklahoma, you’re going to get strong support in Kansas. Kansas doesn’t add information, so to speak.

          2. “It is telling ..”

            No its not. Those are EXAMPLES.

            Do you want me to go thru the history of every amendment?

            They changed the electoral college system pretty quickly once the problem arose, to give another EXAMPLE of widespread support in operation.

            I get it, you hate the Constitution because your opponents get some say in matters. Too bad.

            1. Ah. I see you’ve adopted the Bellmore approach. Your opponents are liars and conspirators against the Republic.

              Saves thinking, I suppose.

    2. “panicked by what they saw as the mob rule of the 1780s”

      Well, then, the author of that Jacobin piece missed all the object lessons from ancient Greece and Rome that the Founders used to argue against direct democracy.

      1. I think it was all of a piece. The abuses they saw in the 1780s would have reminded the classically-trained among them of incidents in Greek and Roman history.

        Again, I’m citing Jacobin magazine to show that, for actual socialists, the Constitution is not some neutral framework which is neutral between socialism and “capitalism,” but is biased against socialism, which these guys see as a bug and others of us see as a feature.

        1. Sorry, Eddy, but that doesn’t cut it. You can’t use complaints from long-ago disaffected socialists to constitutionalize capitalism. Capitalism isn’t in the Constitution. You can see that by reading it. You can see it better by reading founding-era documents. They weren’t much attending to modern contests between rival economic systems back then. To suppose otherwise is present-minded and mistaken.

          The issues the founders cared about were, first and foremost, sovereignty, and then, once that question was settled in favor of direct popular sovereignty, using the tools popular sovereignty provided to get efficient and durable government—government which would win and maintain popular support. To do that, the founders decided to rely on building in a very broad scope for democratic politics. Which necessarily meant that issues like what kind of economic system the nation would have at any given time were left as open questions, to be adjusted according to popular will, expressed through politics.

          1. Socialists have years of experience of being frustrated by constitutional constraints.

            “Never mind all those socialists demanding that the restraints of the Constitution be removed so that they can do what they want to do – that is valueless as evidence, and doesn’t in any way indicate any practical evidence that the Constitution has a bias for what we call capitalism or free markets!”

            When Southern spokespeople called for ignoring the 14th and 15th Amendments, and for pretending that these amendments weren’t part of the Constitution, didn’t that constitute evidence that the 14th and 15th Amendments actually stood in the way of the Jim Crow policies these Southerners wanted to implement?

            1. Or if someone is trying to break into your house, and tries to kick in the door but the door refuses to give, isn’t that evidence that the door is break-in resistant?

              1. “Oh, no, this door is quite neutral as between the residents of the house and the guy trying to break in! You can’t just cite the experience of some criminal to disprove this!”

          2. Except that Article I grants Congress enumerated powers. Congress has the power to regulate commerce with foreign nations and among the several states. Nowhere does the Constitution grant the federal government the power to run businesses, or set income standards, or any other item of socialist desire. Capitalism isn’t an economic system imposed from on high. It is the free market, which is the only form of economics compatible with a free people. And that is exactly what the Constitution was intended to preserve: a free people with limited government.

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