The Constitution as an Allocation of Competences

It [i.e., the Supreme Court] must look to the Constitution, be it with a large or small C, written or unwritten (or both), for it is the constitution of a society which represents the fundamental allocation of competences within that society. It is in its constitution that a society comes to terms with the homely truth that every decision must finally be taken on the managerial, prudential, particularistic judgment of somebody, and yet very few decisions indeed may be left to the judgment of everybody at once. It is in the constitution that a society recognizes that everyone is in principle capable of the Olympian view, and yet in fact most persons will differ when they take it. The Constitution, in short, is a necessary, prudential arrangement for the allocation of competences to take a prudential view. And a court, no less than anyone else, will fail to respect the prudence of the Constitution, if it ignores the limitations on its own scope for making prudential judgments.

Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv. L. Rev. 755, 772 (1963).

Comments

[Dan Schiavetta]

Herein lies the difference between evolving, unwritten constitutions and ours. Ours was based on what a group of white men in 1787 thought might work. It is entitled to no more deference than that. In the 21st Century world it misapportions responsibilities, authority and competences.

[Krayt]

The eternal truth is every clod you kneel to, presuming competency, or changed values, or changed priorities, or modern sensibilities on government, is the same old power hungry corrupt thug striving to increase their control over things for millenia.

This is what that unique momement in time encompassed — the thwarting of untrammeled power, as defined by those wielding it.

Difficulties in changing the Constitution are features, not bugs. If you fancy new ideas, please expound on them, and The People, in their wisdom, will consider it, and perhaps approve it.

Many of the corrupt, power-aggrandizing thugs you love, and who screetch “Democracy!”, did not want The People voting on something like a balanced budget amendment. You have big, noble-sounding words. That is the strength of the patter class, whose specialty is lying about reasons they need more power.

People are being thrown into jail in these wonderful, evolving countries, for words. Words. They have living memory of dictatorship that outlawed words.

You have no confidence easy-change government powers, changed based on the blowing, transient winds of political passion, the forte of the politician, are remotely stable, and many historical instances where such leads to failure and loss of freedom.

Get that statement of yours back inside its echo chamber of ignorant ivory tower believers in the stroking words of the power brokers.

[Dan Schiavetta]

Switch to decaf.

[Michael Resanovic]

He still hasn't managed to un-watch the Minions from a few days ago.

[Purple Martin]

Why are you so angry at Charles Fried? Is it that your Olympian view simply cannot permit his implication of a nation’s constitution providing, indeed being whether we like it or not, both unwritten and only sometimes, written guidance? And that a prudential approach to societal governance requires that both be taken to account?

Sounds like it’s breaking your head. But bellow your frustrations to Fried, and to Sam Bray for introducing you to the horrible, subversive thought that every society’s constitution is fundamentally unwritten and always evolving, even when some try to bind some of the thoughts of a blink in time, to everyone and all future generations.

[Krayt]

Earth’s history, and half the planet today, is a stinking, festering hostage situation of dictatorship. How dare people, modern people living in freedom, because someone got it marginally right, recognizing that 99% of the estimated 80 billion who have ever lived, lived under dictatorship of one kind or another, sit here and rub their chins and virtue signal gosh, maybe the same sweet talkers telling them maybe they should lighten up and give them, the sweet talkers, more power, should, hey, have more power.

Anytime, any time, someone tells you that, they do not have your best interests at heart, and you’re foolish to think it.

It is whistling past the grave yard.

I have no problems with suggestions for changes. I do have a major problem with starting off with the declaration there is something major wrong because that was a different time, yo!

No. The one thing common through all time is there is no end to people with the gift of gab and power hunger. We have them, the dregs, the once and current and future plague of humanity, under chains like some great demon from a story.

Do not let it out, especially for a virtue signal of this low caliber, that we modern people know better than those which chained the demon.

I’m not putting up with Trump letting tanks of those demons roll through Europe, and I’m not putting up with domestic people being suckered into letting the demon out because those who bound it had some flaws. It's the demon's siren song. Look how reasonable we're being. Just...give...it...up...after...250...years.

[Riva]

War broke out under the Biden/Harris administration, not the Trump administration. It is Biden /Harris that threaten WWIII, not President Trump. Looking to inch close to world war? Vote Harris.

[Purple Martin]

This message is brought to you by 1935.

[Riva]

Now say the 80’s called and want their foreign policy back.

Cold War, Russian nuclear threat, vote Harris!

[David Nieporent]

You’ve got to love the “Biden/Harris administration” thing. For four years, all these lunatics said was that it was really the Obama administration, that he was secretly making all the decisions behind the scenes. They even coined the term “OBiden” to try to sell that point. Now that Harris is the nominee, all of the sudden it was actually she and Biden doing everything.

(In the next breath, of course, we’ll hear from Riva that Harris didn’t do anything for four years.)

[Riva]

Do you think it would somehow be a point in your favor that outside unelected forces produced the economic and foreign policy disasters of the last 4 years and would be empowered to do worse under Harris? Ok your call.

[David Nieporent]

If only there actually had been economic or foreign policy disasters of the last 4 years, we might find out.

[Mr. Bumble]

Article V of the Constitution itself establishes the two ways in which it may be amended:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

In simple terms, Article V prescribes that amendments may be proposed either by the U.S. Congress or by a constitutional convention when and if demanded by two-thirds of the legislatures of the states.

[Dan Schiavetta]

The Framers probably thought amendments would be frequent. Which turned out not to be the case. And today, with the misallocation of competences, authority and responsibilities, amendment is virtually impossible except on mundane matters.

[Brett Bellmore]

Amendments actually were fairly frequent until the late 70's. After the DC voting rights amendment went down in flames, Congress simply stopped originating amendments. It's been nearly half a century now since Congress sent an amendment to the states.

The Constitution was ratified in 1788. The Bill of Rights was ratified by '91, so let's treat that as just part of the Constitution's ratification.

The 11th amendment was ratified in 1795, four years later.

The 12th amendment was ratified in 1804, nine years later.

The Titles of Nobility amendment was proposed in 1810, 6 years later.

The Corwin amendment to constitutionally guarantee slavery, in 1861, 51 years later.

The 13th amendment was ratified in 1865, 4 years later.

The 14th amendment was ratified in 1868, 3 years later.

The 15th amendment was ratified in 1870, 2 years later.

The 16th AND 17th amendments were ratified in 1916, 46 years later.

The 18th amendment was ratified in 1919. three years later.

The 19th amendment was ratified in 1920, one year later.

The Child Labor amendment was proposed in 1924, 4 years later.

The 20th and 21st amendments were ratified in 1933, 9 years later. (The 21st represents the only repeal of an amendment...)

The 22nd amendment was ratified in 1951, 18 years later.

The 23rd amendment in 1961, 10 years later.

The 24th amendment in 1964, 3 years later.

The 25th amendment in 1967, 3 years later.

The 26th amendment in 1971, 4 years later.

The ERA was proposed in 1972, 1 year later

The DC voting rights amendment in 1978, 6 years later

And the 27th amendment was ratified in 1992, 14 years later, but had been proposed back with the original Bill of rights.

So, we can see that the founders weren't exactly wrong about that; We got a spate of amendments after the Constitution was adopted, not just the Bill of rights, then a long period without them, another spate of amendments, a somewhat shorter period without, and then amendments were coming along fairly frequently during the 20th century, until the ERA and DC voting rights amendments tanked, and Congress stopped proposing amendments. Which has so far led to a hiatus in proposals that ties the one between the civil war and the early 20th century, but the 27th amendment in that gap to demonstrate the problem IS Congress not originating amendment, NOT the states refusing to ratify.

I'd say we're due for some amendments, but it will take a constitutional convention to get them.

[Dan Schiavetta]

There have been no changes to the separation of powers, which is what we're talking about.

[JoeFromtheBronx]

His list shows amendments were fairly frequent from 1913-71. Otherwise, there were large gaps. More so without the 27A joker.

BTW, the 16A was ratified in 1913.

[Mr. Bumble]

"There have been no changes to the separation of powers, which is what we’re talking about."
Maybe what you're talking about.
No need for an amendment just a return to regular order with each branch (especially Congress) doing their jobs as described by the Constitution.

[Dan Schiavetta]

It's what Fried was talking about.

[Michael Resanovic]

Um... courts/lawyers rejection of the primacy of legislatures in determining what rights are, and determining constitutional meaning?

Lawyers embracing the idea that judges can make law binding private citizens?

Judicial review going from "let's vindicate the people vis a vis the legislature and it's clearly unauthorized act" ... to "the poor sheep need a shepherd; let's become philosopher-kings"?

Rights subject to balancing to rights-as-trumps?

[Noscitur a sociis]

What’s an example of an amendment that you think would or should be enacted but is stymied by the procedural obstacles?

[Dan Schiavetta]

If it's something Republicans want, they need about 65% of the public on their side. With Democrats, they would need upwards of 90%.

[ReaderY]

Maybe Trump is right. Maybe this whole democracy and rights nonsense is for wieners, and our country should evolve into one where the greatest, most excellent, most competent person gets all the power. And we all know who that is. After all, we have a living constitution, don’t we? We’re not stuck with what people in the 18th century thought.

Trump’s concept of what a living constitution ought to lead to is as legitimate a destination, from the point of view of living constitutionalism, as any other.

[Drewski]

"The wise man bowed his head solemnly and spoke: "There's actually zero difference between good and bad things. you imbecile. you fucking moron."

[Ilya Snowman]

No. It is, and is meant to be, a set of binding apex norms. So, it is to be adhered to until it is replaced (or nullified without replacement).

This might be very difficult for some of you Americans to imagine, but that’s what it is to live under the rule of law—this, even if you normatively poo poo its design, its normative priors, its allocations, its designers, etc.

The US constitution serves as a common basis for determining the legitimacy of any downstream law-making action. I may not like Statutory Law X which you wish to pass. But if I think it’s nonetheless constitutional (and was produced through the valid procedures, validly), then I can live with the result AND will think myself bound to adhere to that law.

However, if Colour Team A partisans, in contempt for your apex laws, try to adopt a set of laws or policies despite their obvious unconstitutionality (including if they try to do so by superficially and disingenuously claiming that they accord with the constitution, or that the constitution somehow ‘evolved’ to now validate that downstream norm), then there’s no reason for Colour Team B supporters to abide the putative law, or deem the law-enacting action to be legitimate.

Keep imagining iterations of that and that’s how you get civilizational breakdown.

It’s also a partial explanation of what’s actually happened in your country over the last few decades. The people who CLAIM to be the defenders of ‘the rule of law’ and of ‘democracy’, especially the blue team ones, are often those norms' biggest rapists. Their policy preferences, and the socially just or progressive valence of those policies, trumps any real concerns with their constitutionality and the rule of law.

It’s a very nice lesson in what NOT to do to have a country as a going concern. I assure you that many con law theorists in other Western countries note this about the USA all the time.

[Michael Resanovic]

"Ours was based on what a group of white men in 1787 thought might work."

And yet it is still the case that the constitution *is* what we have agreed with one another to have as a form of government. No more, and no less.

It may need a makeover, (and some originalists may exaggerate just how much is fixed), but that which is fixed is a national settlement. Formal amendment is the only thing that can change it.

[Dan Schiavetta]

One might ask why a woman or a black person would say, “the constitution is what we have agreed with one another to have a form of government”, when the men who did the drafting and the agreeing did not believe that women or black people should have any say in drafting or agreeing to anything.

[Ilya Snowman]

Neither did anyone alive today. So what?

You can also ask why they persist in living on a ‘white’ settler colony. No one is forcing them to stay on the land, either.

You can also ask brown, black, and yellow immigrants’ families why they CHOSE TO MOVE to a ‘white’ settler colony on stolen Indian land. If they offer it as an explanation, you can ask HOW ON EARTH CAN mere diversification of the composition of the colonists legitimize the state/colony? You’ll find that folks have NO good answers for these queries, and can only offer incredible rationalisations that belies their ressentiment and parasitical qualities.

And if people think the US constitution was created by a bunch of white male racist settler colonists, and so they aren’t bound by it or its laws, then they need to ask themselves in turn why ANYONE ELSE would live with and abide by their alternative policy preferences. What other form of grounds renders the attempted implementation of their preferences legitimate, as an alternative to constitutional legitimacy?

‘Cause it sure as shit ain’t shared cultural norms. It’s NOT a shared, uniform morality. And it’s not shared political norms.

If you don’t give people a CREDIBLE reason to think that your alternative is legitimate (and not just desirable), then they have no reason to let you try to implement it, let alone abide by it. Indeed, they’ll deem your efforts to be ILLEGITIMATE. To be invalid. To be unlawful. To be subversive. To be anti-democratic.

And they will correctly deem you to be a significant threat. An enemy.

That’s basically where you idiots are at now. Good luck surviving this process — especially when the rules around protection of the person and property are discarded by all sides.

[Krayt]

[JoeFromtheBronx]

Okay? Without more, not sure what that means in practice.

Anyway, Fried himself had an evolving view of the demands of the Constitution. In the 1980s, he opposed Roe v. Wade.

By the end of his life, he supported a constitutional right to choose an abortion.

https://www.nytimes.com/2021/11/30/opinion/supreme-court-roe-v-wade-dobbs.html

[Ilya Snowman]

Was his change in belief on that topic evidence of an improvement or deterioration viz his conception of constitutionalism?

[The Margrave of Azilia]

Is this article still in copyright? Because they're still charging those who want to read it.

https://www.jstor.org/stable/1338701

[Magister]

If it was explicitly released to the public domain, or if they screwed up the copyright notice or registration, it would not be. It's hard to imagine that the Harvard Law Review would screw up copyright after most of a century of publishing, so probably yes. And anyone can charge you for providing a copy even if it were in the public domain.

[Rossami]

On the contrary, a great many decisions "may be left to the judgment of everybody at once". That is the essence of markets.

That silly comment also ignores that the adoption of the constitution itself is a decision made by everyone at once.

[ReaderY]

It’s not just an allocation of competencies. It’s also, and perhaps more importantly, an allocation of responsibility for incompetence.

We all suffer from Dunning- Kruger. None of us, or at least very few of us, are as competent as we think we are. The framers, wisely, were concerned about allocating and addressing incompetencies as much as they were concerned about competencies.