Today in Supreme Court History: January 16, 1919

1/16/1919: The 18th Amendment is ratified.

Comments

[PeteRR]

"I'll drink to th... Oh, wait."

[bernard11]

"Prohibition makes you want to cry in your beer, and denies you the beer to cry into."

--Don Marquis

[DaivdBehar]

Prohibition is under rated. It only cut alcohol consumtion by half. The media touts a resulting crime wave. Yet crime dropped overall since half of it is driven by alcohol. Half the murderers are drunk as are half the murder victim. Half the suicides are drunk. Half the crash victims are drunk. Alcohol directly kills 80000 people. The indicator of alcoholism death by cirrhosis dropped in the 1920s. That era was a boom time. The productivity gain from dropping alcohol consumption was a factor.

[Aladdin's Carpet]

Are ... are you for real?

[Flight-ER-Doc]

Certainly was good for organized crime...

[m4019597]

It was good for everyone.

Jazz came on the scene during Prohibition and there was the Harlem Renaissance, too. Since there was less spending on booze at home, the entertainment industry experienced a boom.

[Commenter_XY]

DaivdBehar....Are you thinking of the HEW report from the early 70's when you cite these trends (stats?)?

[Titus PUllo]

Was good for old Joe Kennedy for sure

[Krychek_2]

Prohibition severely undermines the originalist argument that if you don't like it, just amend the Constitution, because it demonstrates that truly goofy ideas can sometimes achieve necessary public support, even as far more worthy ideas just can't seem to get over the 2/3 of Congress plus 3/4 of the states requirement. The repeal of Prohibition very nearly didn't succeed, in which case alcohol would still be illegal. I'd far rather the Constitution were easier to amend because it would make getting rid of bad ideas easier than it currently is. Even if the cost of that is that an occasional bad idea manages to slip through, because I think the need to get rid of bad ideas will arise far more often.

[Dilan Esper]

I don't think Prohibition was a goofy idea. It turned out to be a wrong idea, but it wasn't goofy at all. The history alcohol use and abuse of the first 130 years of this country was torrid, and just got worse and worse over time. It wasn't a mass hysteria- people were trying to confront a thorny social problem and just didn't consider the unintended consequences sufficiently enough.

[Krychek_2]

Probably most ideas that turn out to be wrong amount to a failure to consider unintended consequences sufficiently. I think that at the time Prohibition was enacted, a serious thinking through of the likely side effects would have counseled against it, and even without benefit of hindsight it would have been recognized as a bad idea.

[Kevin Smith]

It's also a failure to find the root cause of the problem you think you are solving. Many were sold on prohibition by the idea that a man who spends all his time at the saloon, deprived of the saloon, would become a good husband and father. The reality is that he was already a bad husband and father, and spending time at the saloon was the symptom, not the disease

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Alcohol consumption has consistently dropped over the years. I don't know about 1920 particularly, but Americans today drink something like 1/2 or 1/3 as much as Americans 200 years ago.

[Dismalist]

That is not correct. Alcohol consumption per capita in the US has remained roughly constant over nearly 200 years. Any data from Prohibition I do not trust.

It has recently come down in Belgium, France, Germany and Italy, all without prohibition.

https://www.statista.com/statistics/442818/per-capita-alcohol-consumption-of-all-beverages-in-the-us/

https://ourworldindata.org/grapher/per-capita-alcohol-1890

[Kevin Smith]

Your first link is pay walled so I have no idea what it shows

The second only goes back to 1890, but alcohol consumption was at it highest around 1830

[Titus PUllo]

It was pushed by married white women who at the time had to rely on their husband's paycheck. If the guy blew his wages at the bar..well the wife could not buy groceries. It was the ultimate white "Karin" law....

[Michael D]

Don’t you think it goes even deeper than the amendment process?

[Krychek_2]

Of course. But any step in the right direction is a good thing.

[Cal Cetín]

Let's see - after several decades of agitation, the prohibition forces got a constitutional amendment.

Just over a decade later, Congress proposed repeal and submitted the repeal to state "conventions" (actually referenda in each state). The needed 3/4 was promptly achieved, and presto - the 21st Amendment got rid of *federal* prohibition.

Without using the amendment process, they got a federal ban on the devil's lettuce...a ban which overrides the decisions of states which want to Legalize It.

The federal prohibition of booze lasted just over 10 years, with the constitutional amendment process first instituting it and then getting rid of it.

But whatever you think of banning the wacky tobaccy, that was done without an amendment and that ban is lasting longer than the federal booze ban.

So we see on the one hand the fruits of the amendment process and on the other hand the fruits of living constitutionalism.

[Krychek_2]

No we don’t. At the time pot was banned there was overwhelming public support for banning it. There would have been no problem getting an amendment banning it had they chosen to go that route. They didn’t bother because they didn’t have to.

Had ban proponents chosen to take that route it would now be cast in constitutional concrete. Instead under the current system legalization will simply require a majority in Congress.

[PeteRR]

So banning one mind-altering substance required amending the USC, but banning a different mind-altering substance didn't?

[Krychek_2]

I think the Commerce Clause would have enabled Congress to ban alcohol without amending the Constitution as it has with drugs. Which does not mean I think banning either is a good idea.

But as to my original point, the benefit of living constitutionalism, to which I subscribe, is that you don’t have to cast something in constitutional concrete, meaning once it becomes apparent that it wasn’t such a great idea after all, Congress can simply reverse course. Which is why ending the ban on drugs will only require a Congressional majority whereas repealing Prohibition took another Constitutional amendment.

[Cal Cetín]

"the benefit of living constitutionalism, to which I subscribe, is that you don’t have to cast something in constitutional concrete, meaning once it becomes apparent that it wasn’t such a great idea after all, Congress can simply reverse course"

But there are some "living constitionalist" precedents which can't be overturned by a mere vote in Congress.

[Krychek_2]

Cal, if you’re looking for a policy that is 100 percent guaranteed to never produce a bad result, forget it. You’re never going to find it.

The question is which policy is more likely to produce good results more of the time. And I think making it easier to get rid of bad policies is more likely to come up than the other way around.

[Cal Cetín]

"if you’re looking for a policy that is 100 percent guaranteed to never produce a bad result"

No, not really.

"The question is which policy is more likely to produce good results more of the time. And I think making it easier to get rid of bad policies is more likely to come up than the other way around."

What happens if, let's say, Congress decides that free speech, trial by jury, etc., are bad policies? Would they be easier to change under your approach?

[Krychek_2]

Congress, and the courts, have already decided that those rights aren't absolute. Free speech doesn't include child pornography, or the publication of nuclear launch codes, and you don't get a jury trial if you're challenging an action taken by an administrative agency. So to a certain extent there will always be lines that need to be drawn.

But suppose Congress decided that jury trials would be abolished altogether, so nobody ever got one for anything. And that only Republicans would be allowed free speech, and the Southern Baptists are now the established church. Would living constitutionalism allow them to do that?

No, because living constitutionalism requires a showing that the desired result be consistent with traditional notions of ordered liberty, and in this country, at this time, we have too firmly grounded a tradition of free speech and trial by jury for that to fly. I'm not saying it could never happen; that society couldn't evolve (or, in this case, devolve) to the point where those were no longer considered so firmly grounded in our traditions as to be sacrosanct. But that would require a major sea change in public opinion and understanding of what ordered liberty is all about, and if we reached that point, America would no longer look much like America anyway.

This particular branch of constitutional law has two components: Expanding the power of the federal government (the Commerce Clause) and restricting the power of the states (abortion, gay marriage, ending Jim Crow). Most of the time when the Supreme Court has done that, all it's really done is to recognize the reality that that's where the public is. Most Americans support abortion rights, and gay marriage, and for that matter national health care, but can't get those things legislatively because of our bizarre polity under which the minority gets to veto progress.

My preference would be to do them legislatively, but I'm not as willing as you are to hold up progress until the last holdouts in Sheepdip, Wyoming finally come around. The majority has rights too.

[Cal Cetín]

"not as willing as you are to hold up progress until the last holdouts in Sheepdip, Wyoming finally come around"

I'm fairly sure that's not what I said.

[Cal Cetín]

But applying your reasoning, what with the amendment process being so slow, shouldn't Congress be allowed to abolish gay marriage if it wants instead of waiting for an amendment?

[Krychek_2]

My Sheepdip, Wyoming comment was a bit of hyperbole, the point of which is that under your preferred system, progress is stopped dead in its tracks unless an awful lot of people who have far more power than their numbers justify are on board.

Congress could, if it chose to, abolish gay marriage by removing the subject from the jurisdiction of the federal courts. The Constitution provides that Congress gets to determine the jurisdiction of the federal courts, and there is nothing stopping them from passing legislation determining that gay marriage, or abortion, or appeals from state death row prisoners, are outside the jurisdiction of the federal courts. That they have not done so is probably from recognizing that doing it would set a terrible precedent, but there are in fact statutes scattered throughout the United States Code that say that this or that cannot be reviewed by the federal courts.

That said, under a textualist approach, I think the Supreme Court got gay marriage right even without living constitutionalism. The authors of the Fourteenth Amendment may not have been thinking about gay marriage, but the text of the 14th Amendment itself pretty broadly requires equal rights for everybody, and there's no gay exception.

Why should the legislature be permitted to enact its prejudices into law to the detriment of disfavored minorities?

[Cal Cetín]

OK, so you'd uphold the constitutionality of a court-stripping measure. Which would leave it to each state's high court as to the status of gay marriage.

So your position is somewhat majoritarian - I daresay more majoritarian than many living constitutionalists would like.

"Why should the legislature be permitted to enact its prejudices into law to the detriment of disfavored minorities?"

Numero one-o, why not address that question to yourself, given the majoritarian thrust of your views?

Numero two-o, ask the owner of Masterpiece Cakeshop. Under living constitutionalism the majority still decides which minorities are worthy of being minorities.

[Krychek_2]

I am not a pure majoritarian. I think some rights are beyond the reach of majority rule. But I also think the default position is that the majority should get what it wants most of the time, unless you can come up with a far better argument than any I’ve heard so far as to why the minority is any better at setting policy than the majority. And I fully understand that my side won’t win every election and the consequences of my position include getting some policies I’m not going to like.

With respect to Masterpiece Bakery, we either have anti discrimination laws or we don’t. If you want to take the principled position that we shouldn’t have anti discrimination laws, I’ll disagree with you, but I’ll acknowledge it’s a consistent position. So long as we have them, I see no principled reason to make a religious exception,
since anyone who objects to the law will just claim it’s against his religion.

[Cal Cetín]

"I am not a pure majoritarian."

You're more so than those who want to stick to the Art. V process for adopting amendments.

By your lights, a Congressional majority could eliminate gay marriage in states where the elected branches (which would include the state high court, of course) don't want gay marriage.

"I see no principled reason to make a religious exception"

No religious exemptions for the draft? No exemptions from the drug laws for members of peyote-using Native American religious groups? No religious exemptions for the Amish from the public-school laws?

[Cal Cetín]

In any case, you've just made an argument for legislatures enacting their prejudices into law to the detriment of disfavored minorities.

In one state they'd allow religious freedom to "fundamentalists" but not to hijab-wearers, in another state vice-versa.

[Cal Cetín]

I should say, you've made an argument for *allowing* legislatures etc.

[Krychek_2]

How do you get around the problem that if you allow religious exemptions, anyone who wants to disregard any law simply says it’s against their religion? Do the 9/11 hijackers get a free pass because they were following their religion? How do you draw a principled line that allows the Amish to not send their kids to school but doesn’t allow Mohammed Atta to hijack a plane and fly it into a building?

And no, I have not just given the legislature carte blanche to punish disfavored minorities. I said there are some rights beyond the reach of the majority. If they’re coming after you because you have unpopular ideas or you pray to the wrong god or you want to marry another dude, those are fundamental rights. I would apply the City of Hialeah test.

[Cal Cetín]

Hmm...here's the test I advocate, so figure out for yourself whether it would legalize religious terrorism:

https://www.congress.gov/bill/103rd-congress/house-bill/1308

Moving right along...your complaint about the amendment process seems to be that it's too tender to minorities and that constitutional changes need to be easier, so I'll simply reiterate that you face the same question you posed to me:

"Why should the legislature be permitted to enact its prejudices into law to the detriment of disfavored minorities?"

[Cal Cetín]

"And no, I have not just given the legislature carte blanche to punish disfavored minorities."

I didn't say carte blanche, I simply suggested that you'd make attacks on disfavored minorities *easier* than I would make it.

[Krychek_2]

Cal, because one of the central themes of America, albeit one we haven't always done a good job of living up to, is that Americans have the right to disagree and live their lives differently than their neighbors do. It's not just disagreement about I like Coke and someone else prefers Pepsi; it's disagreement about stuff that touches the social order itself, like whether a pregnant woman can end her pregnancy, or whether two dudes can make a family, or what one believes about religion, or, going back to the original theme of this thread, what chemicals one decides to ingest. That's what makes us Americans.

So if the only reason you have for going after someone else is that you disagree with their life choices, well, you've touched a fundamental right that should not be within majoritarian control.

Now, if what they believe and practice is causing direct harm to someone else, then at that point you have to weigh and balance the interests. But our starting point is one of basic liberty.

[Cal Cetín]

Right, and respecting the Art. V process does a better job of protecting dissenting Americans than allowing easier amendments in the name of interpretation.

[Krychek_2]

Cal, do you have any actual evidence to back that assertion up? Why would adherence to Article V provide more protection than living constitutionalism (which, I will note, tends to move in the direction of enhancing individual rights. Not always. See, e.g., birth control).

[Cal Cetín]

"tends to move in the direction of enhancing individual rights"

Can you back *that* up? We have Scalia's faint-hearted originalism in the Raich case, where they said Congress could use interstate commerce as the excuse for a federal marijuana ban.* We have the same reasoning to stop farmers from growing wheat for their own consumption. We have the penaltax. We have people going to prison without *any* jury (grand or petit) examining the merits of their case.

If we waited on the Art. V process before expanding interstate commerce into the states, before watering down the Bill of Rights, etc., then we (including people in Sheep Dip, Wyoming) might have more rights.

*Maybe they could justify the law as enforcing international drug treaties, but I would like to see them bold enough to make that argument openly.

[Krychek_2]

Cal, with the exception of Raich, your examples all go to economic regulation, which is not quite the same thing as interfering with fundamental individual identity, fundamental liberty, and lifestyle choices. My comments were limited to protecting people that the government is going against just because they are unpopular, which is not quite the same thing as regulating the market in the public interest.

And on those issues, whether it's legalizing birth control, or inter-racial marriage, or gay marriage, or discriminating against pregnant women (or for that matter women in general), it's the living Constitution that has expanded those types of personal rights.

And I would argue that even a lot of that economic regulation that you hate actually does make people more free, just not the people you care about. Laws that require that food be accurately labeled, for example, give me the freedom to make a truly informed choice as to what groceries to buy (and the confidence that the contents will be what the label claims it is). Anti-discrimination laws mean that unpopular people have a better shot at participating in the marketplace, which benefits everybody. Laws that require employers to pay overtime for more than 40 hours a week means more freedom for workers. So the question isn't whether these laws make us more free; the question is *who* is made more free by these laws. And, on that question, we just have different priorities.

[Cal Cetín]

"regulating the market in the public interest"

Yes, the Art. V process can fill in any needed gaps in federal economic authority, meanwhile the states can tackle these problems under their police power. Keeping to Art. V limits the ability of the federal government to federalize everything without full consideration by the states, which in itself raises problems of freedom.

"people you care about"

Is this really an issue about superior *caring*?

"legalizing birth control, or inter-racial marriage, or gay marriage, or discriminating against pregnant women (or for that matter women in general)"

That's a lot of separate subjects you're putting together.

[Krychek_2]

But there are no needed gaps since we have the Commerce Clause. It fills them in very nicely, thank you very much. We're not going back to pre-New Deal.

[Cal Cetín]

The thing is, I'd think that to expand the Commerce Clause to include people growing wheat, or smoking weed, at home would require an amendment. Obviously you agree with the Supreme Court majority over the dissenters (and Scalia is one of those you agree with - also on religion you agree with him).

[Krychek_2]

I frequently disagreed with Justice Scalia, but not always. But no amendment is required if the question is "what does the existing text mean", even if the answer you ultimately come up with isn't the same answer James Madison would have given.

[Cal Cetín]

On the contrary, I'm not even sure that even Hamilton would go as far as the Supreme Court has gone, and in any case the Constitution uses the phrase "commerce among the several states," not "wheat rationing" or "reefer madness." I don't see how a regulation of local activities can - at least in these situations - be necessary and proper to regulating commerce among the several states.

Scalia and his friends of course disagree!

[Krychek_2]

And the problem is there is such a thing as being too literal. The Constitution provides that POTUS is the commander in chief of the Army and Navy, but doesn't mention the Air Force (no surprise since there was no Air Force in 1789). Should we amend the Constitution to make it clear that POTUS is CIC of the Air Force too, or can we just agree that the point of it is armed forces, regardless of whether they've been reorganized since the text was written.

[Cal Cetín]

I grant that the Army and Navy can use airplanes, drones, etc. - the question is whether, from the *bureaucratic* point of view, it would be better to have a separate service branch to handle all of this. If such a bureaucratic move is needed, an amendment could have accomplished that, but I guess they decided to skip right over that part - thereby, I suppose, establishing a precedent for putting farmers and potheads in prison for what they grow on their property.

[Cal Cetín]

If I had to guess, I'd say they probably skipped the amendment process and set up a separate Air Force in response to the possibility of nuclear destruction by the Soviets - if they sincerely believed bureaucratic independence for the air force was essential to respond to this possibility, I can see why they may have skipped the amendment process (though they could have asked the public to ratify their decision afterwards).

So I guess the precedent is that you can lock up the farmer and the pothead if they're threatening a nuclear war. Otherwise I'm not sure the air force precedent does much good.

[Cal Cetín]

Here's Wikipedia on how the Army's air force became the USAF:

https://en.wikipedia.org/wiki/United_States_Army_Air_Forces#Demobilization_and_independence

[Krychek_2]

Cal, none of that is a precedent for jailing the person who grows pot in his own back yard for his own consumption. You've basically made a slippery slope argument, that X necessarily leads to Y, and it doesn't. I can tell the difference between including the Air Force in a constitutional provision obviously intended to apply to the military, versus telling someone that what grows in his garden is interstate commerce. Most reasonable people can tell the difference and understand why one of them is not like the other. There is no requirement that courts, or legislatures go on to the next step.

It's the same argument as we can't have gay marriage because next thing you know, people will be marrying their German shepherds. And it's a bullshit argument.

[Cal Cetín]

I said it would take an amendment for the federal government to lock up the farmer and the pothead, and you replied by invoking the Air Force:

"And the problem is there is such a thing as being too literal. The Constitution provides that POTUS is the commander in chief of the Army and Navy, but doesn't mention the Air Force [etc]"

In short, the flawed comparison you deplore comes from you.

[Kevin Smith]

Today's interpretation of the commerce clause would allow prohibition, but at the time the 18th was ratified it hadn't been expanded in scope to encompass intrastate activity, or noncommercial activity yet

[Brett Bellmore]

I am totally puzzled where you could have gotten the idea that the originalist understanding of amendments has anything to do with whether they're good or not. That's not just out of left field, it's out of some alternate universe with 23 dimensions where Earth orbits a flock of sheep.

Originalism is a doctrine about what the damned words mean, and explicitly rejects the idea that they have to mean something Krychek_2 likes.

If you wanted to apply originalism to Prohibition, you'd be talking about topics like, "The 18th and 21st amendments refer to "intoxicating liquor"; Are they limited to alcohol, or would they apply to any drug in liquid form capable of intoxicating?" IOW, does the 21st amendment strip the federal government of any authority to regulate liquid Benadryl? That's an interesting question from an originalist perspective.

"Was Prohibition good or bad?" is a question that has nothing to do with originalism. Originalists can discuss it, sure, but not as originalists.

You can't seem to pry yourself loose of the notion that the rules have to mean something that works out good, so if any interpretation of them that doesn't work out well, in your own opinion, must be wrong.

No. The rules mean what the rules mean, and if you don't like what they mean, follow the rules on how to change the rules.

[Krychek_2]

OK, since you apparently missed the point of this entire conversation, I shall state it plainly and clearly: America needs living constitutionalism because the amendment process does not work. Spare me the arguments about how I just need to convince more people; the amendment process guarantees that stuff that hasn't worked for decades can't be gotten rid of. And if you think the majority of Americans, who want good governance, are simply going to forego good governance because the framers in their wisdom gave a small and ever-diminishing minority of those hostile to progress a veto, forget it. We'll simply interpret the text in a way that allows good governance, whether it's how James Madison would have interpreted it or not.

[Brett Bellmore]

I thought you point was that Americans passing an amendment you didn't like, and then repealing it a decade later, proves the amendment process 'doesn't work'. Because your measure of 'working' is whether you, personally, like the results, not whether amendments the stupid public like are capable of being originated and ratified.

Well, I totally reject that measure. I equally reject a 'whether *I* like the results' measure, too. The system wasn't designed to make you or me happy.

" We'll simply interpret the text in a way that allows good governance, whether it's how James Madison would have interpreted it or not."

You'll simply interpret the text in a way that permits you to get your way, whether or not the public likes you getting your way, because to hell with democracy if the voters disagree with you.

[Krychek_2]

No, the issue isn't whether I, personally, like the results. I would hope we would both agree that Jim Crow was a bad thing for reasons having nothing to do with my personal preferences.

And it's not a matter of me getting my way. It's a matter of the majority getting its way.

[Brett Bellmore]

The majority got its way twice on Prohibition, and you declared that proof the amendment process didn't work. What basis did you have for saying that, except that you thought Prohibition was a bad idea?

[Krychek_2]

Prohibition was repealed over the objections of ten states; one more and repeal would have failed. That we narrowly avoided that catastrophe is not proof that the system works.

At the time drug laws began to be passed there probably would have been sufficient support to pass a constitutional amendment banning pot, and I very much doubt we're anywhere near the numbers necessary to repeal such an amendment now. Without amending the Constitution, pot laws will be repealed just as soon as there's a simple majority in Congress for doing so. We're not there yet either, but we'll be there a lot quicker than we would be if we had to use the amendment process.

[Brett Bellmore]

38 states voted to repeal, two states actually held votes and rejected the amendment, and the other 8 simply did not act on the amendment at all. Presumably because it was already ratified, so why bother? I've seen nothing to suggest that they actually objected to the amendment, action was simply redundant at that point.

But if your point is that, in some alternate universe, a less unpopular Prohibition might not have been repealed, color me unimpressed. You're still in "It has to produce results I approve of to be counted as working." territory.

[Krychek_2]

By that argument, the states that failed to pass the Equal Rights Amendment took no position on it.

And if you can't see the difference between "results I approve of" and "results the majority approves of, just not enough to get through the amendment process" then I can't help you.

[Brett Bellmore]

Yes, I'd say that any state that didn't hold a vote on the ERA had taken no position on it one way or another, for ratification purposes.

"And if you can't see the difference between "results I approve of" and "results the majority approves of, just not enough to get through the amendment process" then I can't help you."

Of course there's a difference, just not any legally relevant one. Article V is clear enough, and you or I not liking how it works in process doesn't alter what it means.

[Brett Bellmore]

To be clear, there are parts of the Constitution I don't like, too. Mistakes, (IMO) of both commission and omission. This does not prompt me to lie about what they mean, or urge that they be violated.

Originalism isn't a theory of what the Constitution should mean. It's a theory of what it does mean. It's utterly agnostic about whether that meaning is good or bad.

But, I think that the rule of law is sufficiently valuable that we should maintain it even in the face of some fairly bad laws. THAT is a normative belief, even if originalism isn't normative.

And I think it's absurd to believe that you can staff the government with people willing to lie about the meaning of the law, so as to pretend the rule of law has been preserved, while actually violating it, and expect them to only lie when it would produce a better outcome than honesty. That's not realistic human psychology. There are no noble lies, or noble liars, you staff the government with liars, you get corrupt government.

And living constitutionalism rests on lying about the meaning of the law, because originalism IS what the law means, like it or not.

[Krychek_2]

And our difference is over whether the meaning of something changes over time. Saint Paul commands that "a bishop is to be the husband of one wife," by which plain meaning the Catholic church hasn't had a legitimate bishop in centuries. But the plain meaning isn't the only possible meaning. Since he wrote at a time in which polygamy was common, did he mean "no more than one at a time", which is the meaning the Catholic church has ascribed to it, or did he mean that bachelors aren't eligible (IS TO BE the husband of one wife), which is the meaning to which the church I grew up in ascribed to it.

Both of those interpretations are plausible, and the person who chooses the one you don't isn't being dishonest. Constitutional interpretation works that way too. Sure, originalism is a plausible mechanism; it just ain't the only one. And I suspect Paul intended to require that bishops be married, but I don't think the pope would care.

[Armchair Lawyer]

It's telling you need to switch to the Christian church here, for an "originalism" argument.

Here's a better originalism versus living Constitutionalism argument.

Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation—from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day.

Under Living Constitutionalism, all that is needed is for social beliefs on racial segregation to "evolve" and the Constitutional can "evolve" again to allow for Racial Segregation. Originalists think no, unless you amend the Constitution, you can't have racial segregation.

See the difference?

[Krychek_2]

AL, find me a living constitutionalist who thinks racial segregation was constitutional from 1877 to 1954.

And that's a prime example of why I'm no longer engaging you substantively. I know from past experience that you'll twist my words, twist my arguments, claim I said things I never said, and totally ignore what I actually do say. So I'm giving up talking to you for Lent (and getting an early start since Lent isn't for another several weeks). You're not honest in your engagement with me. Have a blessed day.

[Armchair Lawyer]

Krychek,

https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation

You need to be prepared to accept the bad of living constitutionalism.... If the Constitution can be bent to fit the social mores of the time, then...

[Krychek_2]

AL, I said find me a living constitutionalist who says that, not a right wing hack who's misrepresenting living constitutionalism. If you can find someone who identifies as a living constitutionalist, and who also says that segregation was constitutional from 1877 to 1954, I'll donate $100 to the right wing organization of your choice. But it has to be an actual living constitutionalist who said it, not some right wing hack who's lying about what LC is.

[Brett Bellmore]

"AL, find me a living constitutionalist who thinks racial segregation was constitutional from 1877 to 1954."

GIve us all a break, will you? That's the point: Living constitutionalists claim that it's an objective procedure justified as a response to evolving meanings, but you can't find any who ever will admit the Constitution 'evolves' in directions they don't like.

The point is that living constitutionalists WOULD have said it was constitutional during that period, if they were actually doing what they claim to be doing.

As all they're doing is making excuses for claiming the Constitution really means whatever they wish it meant, though, it's perfectly understandable none of them claim Jim Crow was constitutional.

[Krychek_2]

Brett, you remind me of the jury that came back and said, "We all think he's not guilty because we agree he wasn't there at the time, but we all think he would have done it if he had been there at the time."

[Brett Bellmore]

Identify for me an area where the Constitution has evolved in a direction living constitutionalists don't like, and they've been forced to admit it's 'meaning' has changed contrary to their preferences. Because I can't think of any.

While you can ask any originalist you want for examples of parts of the Constitution that mean things they don't like, and they'll have no trouble obliging.

[Krychek_2]

You're assuming that all living constitutionalists are liberal, which is not the case. There are living constitutionalists whose personal policy preferences are conservative but who also recognize that parts of the Constitution have outlived their usefulness and the amendment process is not a politically feasible way to fix it.

That said, speaking as a living constitutionalist who also has liberal policy preferences, yes. Gun control. I think the Second Amendment absolutism pushed by conservatives is ahistorical nonsense and that fifty or a hundred years ago the courts would have been far more receptive to gun control than they are now. I know you disagree. But state legislature after state legislature has taken that position and it appears the US Supreme Court is poised to do the same. So, that would be one area in which constitutional law has evolved in an area I don't care much for.

Someday the pendulum will swing back. Not any time soon.

[F.D. Wolf]

The Prohibition Party has run a candidate in every presidential election since 1872, making it the third-oldest political party in the United States.

In 2016, its candidate Bill Bayes received 5,617 votes nationwide, which may not sound very impressive, but it represented more than a 1000% increase from its 2012 total of 508 votes.

[Kevin Smith]

What was the 2020 result? I suspect closer to 2012 levels. 2016 was only good for third parties due to the profoundly bad candidates from both major parties

[F.D. Wolf]

4.834.

Correction: the 2016 presidential nominee was James Hedges. Bayes was the VP nominee.

[Rev. Arthur L. Kirkland]

Evidence indicates the proper course with respect to alcohol is careful regulation; "anything goes" and prohibition arguments have been discredited by experience, at substantial cost.