Constitutional Law, in Pop Culture

A funny movie from my youth was Tommy Boy, starring Chris Farley and David Spade. I recently rewatched it. This question on Chris Farley's final exam in history made me cringe (and not because he wrote Herbie Hancock).

Then again, perhaps I should let the producers off easy. I recently saw this book at the Houston Public Library, and also cringed.

No, the Constitution is not built to change with our country. It was made notoriously difficult to amend. This author has no apparent expertise about the Constitution, but I suppose that shouldn't stop her from writing about it.

One of my long-term goals is to write children books about the Constitution. It's on the agenda.

Comments

[Martinned2]

This author has no apparent expertise about the Constitution, but I suppose that shouldn't stop her from writing about it.

One of my long-term goals is to write children books about the Constitution.

Too easy...

[Supremacy Claus]

Ironic. The toxic lawyer profession feels free to change the constitution by pretending to not understand a pre-school vocabulary word. Article 1 Section 1 gives "all" lawmaking power to the legislature. The Supreme Court, a bunch of despicalble elite school bookworm twits who know shit about shit, feels free to cancel a law and a ratified international treaty. Result: the worst catastrophe in history, the Civil War.

Again, Article I Section 1: All legislative power is vested in Congress. Congress cannot delegate its function. So we have 10000 pages of anti-scientific, garbage regulations a year, destroying our economy and our quality of life.

The Eleventh Amendment limits diversity jurisdiction if the defendant is a state. These vile scumbags just make up shit:
Hans v. Louisiana, 134 U.S. 1 (1890)
A citizen cannot sue their own state in federal court either.
Seminole Tribe v. Florida, 517 U.S. 44 (1996)
Congress cannot abrogate state sovereign immunity under Article I powers.
Alden v. Maine, 527 U.S. 706 (1999)
State sovereign immunity applies in state courts too, not just federal.

Article I, Section 8: “To regulate Commerce with foreign Nations, and among the several States…” Problem: Courts have upheld federal regulation of non-commercial, intrastate activities (e.g., wheat grown for personal use in Wickard v. Filburn, 1942).
Criticism: Critics argue this obliterates the distinction between interstate and intrastate, and commercial vs. non-commercial.

Article I, Section 8(11): Only Congress can declare war. Problem: The U.S. has fought dozens of wars (Korea, Vietnam, Iraq, etc.) without declarations of war. Criticism: This shifts immense power to the Executive, effectively ignoring a plain-text restriction.

6. Tenth Amendment (States’ Rights)
Text: Powers not delegated to the United States... are reserved to the States... Problem: Numerous federal actions (e.g., education, health care, housing) operate in fields not enumerated in the Constitution. Criticism: This undermines the Tenth Amendment by allowing federal overreach via implied powers.

Origination Clause Violations. Text: Article I, Section 7: “All bills for raising revenue shall originate in the House of Representatives…” Problem: The Affordable Care Act (Obamacare) began in the Senate (per some interpretations).
Criticism: Courts dismissed challenges, but some argue the bill’s structure violates the Origination Clause.

Excessive Delegation of Treaty Power
Text: Article II, Section 2: Treaties must be ratified by 2/3 of the Senate. Problem: Executive agreements and international compacts (e.g., Iran Deal, Paris Climate Accord) bypass Senate ratification. Criticism: Critics say these function like treaties but evade constitutional process.

Free Exercise Clause vs. Employment Division v. Smith (1990)
Text: “Congress shall make no law… prohibiting the free exercise [of religion]…” Problem: Smith allowed general laws to burden religious practice without strict scrutiny. Criticism: Some argue this neuters the Free Exercise Clause for religious minorities.

Sixth Amendment Right to Jury Trial (Civil Cases)
Text: In suits at common law where value exceeds $20, the right of trial by jury shall be preserved. Problem: Modern administrative tribunals often adjudicate civil penalties without a jury. Criticism: Courts have allowed this, effectively sidelining the Seventh Amendment.

The Justices of the Supreme Court are in insurrection against the constitution. With every judicial review, arrest them, try them, sentence them to 10 years terms in prison, to run consecutively. Enhance the sentencing because done under color of law. Put them in gen pop. Because of their conferences to make decisions, make it for seditious conpiracy, which gets 20 years.

[Dr. Ed 2]

Didnt the 14th cut a hole in the 11th?

[Stupid Government Tricks]

No, it's just about your scholarly level.

[Dr. Ed 2]

Writing quality childrens books isnt easy.

[JoeFromtheBronx]

No, the Constitution is not built to change with our country. It was made notoriously difficult to amend.

It was immediately amended, soon amended twice again, and then eventually was amended in ways that were revolutionary. Then, it was amended twelve more times.

James Madison in Federalist No. 43 noted that "useful alterations will be suggested by experience, could not but be foreseen."

Justice Story later noted the amendment process allows change as "time and experience, or the new phases of human affairs," warranted. That is our country changed.

The amendment process was made difficult, but it was not so difficult that changes could not occur. The unanimity necessary in the Articles of Confederation was rejected.

As a label on a children's book, it is not incorrect. The statement is also true in another way. The specific applications of constitutional provisions will change over time. They are purposely framed in open-ended terms to allow that.

So, what is specifically necessary for "due process" or "equal protection" will change in various ways as our nation changes.

Your final threat is duly noted.

[Frank Drackman]

Of course the 27th amendment only took 202 years to get ratified.

[Stupid Government Tricks]

The Constitution is hard to amend compared to a lot of state constitutions and many other national constitutions which seem to be amended by legislation alone.

[Frank Drackman]

Alabama's Constitution is the World's longest at 369,380 words, more than two-and-a-half times the length of the second-longest, the English language version of the Constitution of India.
Of course, that's the "New" Constitution, ratified in 2022 (by Repubiclowns BTW), eliminating some of the Race-ist language included in the DemoKKKrat written 1901 Constitution, which had 388,882 words.
Which is 13, 502 fewer (lesser?) words
My, those DemoKKKrats used the "N-word" alot, they still do, in fact, the only POTUS who was recorded actually using the word was Barry Hussein. (Go ahead, find me a recording of LBJ, Milhouse, Ronaldus Maximus, "W" or even "45/47(48?)" saying it
Frank

[wvattorney13]

"So, what is specifically necessary for "due process" or "equal protection" will change in various ways as our nation changes."

No it won't. If you do that then you've surrendered all legislative and executive authority to the Supreme Court who can "decide" that this or that meets the newly made (by the Supreme Court) requirements.

These concepts should be illuminated by the original public meaning when the text was ratified. If there needs to be more added, we can add by statute or by constitutional amendment, but NOT by a 5/9 vote of our philosopher kings with life tenure.

[Stupid Government Tricks]

Nice to have dreams, but the courts have amended the Constitution thousands of times.

[Sarcastr0]

You one of those cranks who doesn’t like Marbury v. Madison?

[JoeFromtheBronx]

Seems off. There is strong evidence that "original public meaning" supports Marbury.

OTOH, refuting my argument seems not to be too loyal to McCulloch v. Maryland, including references to how the Constitution allows things to be "adapted to the various crises of human affairs" and provide "for exigencies which, if foreseen at all, must have been seen dimly."

[SRG2]

here is strong evidence that "original public meaning" supports Marbury.

This is really simple. Art III delegates to SC the judicial power, and unambiguously at the time, given the nature of judicial power in Britain, this included the power to rule on what the law was.

[Sarcastr0]

I mean, departmentalism is alive and well in conservative academic circles.

i.e where you don't need to think too hard about how to make things actually work.

The folks here haven't managed that patina of plausible motivation. They're just casting about for why Trump getting stymied by the judiciary is always illegitimate.

[LawTalkingGuy]

Original public meaning originalists are more reliant on a strong version of judicial review than anyone. The concept can really only be consistently applied and enforced by a small group of unelected lawyers. Getting 5 votes to “um, actually” constitutional meaning based on the dictionary and arcane common law treatises can only work in the judiciary. If Congress was the primary organ for developing constitution meaning (which it probably was supposed to be for the reconstruction amendments), debates would be much more about values than technical meaning. No one would get a legislative majority by relying on Samuel Johnson’s definition of commerce.

[Sarcastr0]

You're both right - this isn't really legal analysis. It's MAGA institutionalism dressed up in legal garb.

Just surprised to hear this from someone who wen to law school. But then MAGA has plenty of lawyer dipshits.

[JoeFromtheBronx]

Your reply references "original public meaning."

Who determines when that applies to a specific executive or legislative act? The courts still will play a significant role.

There will be no surrendering "all" legislative or executive power to the judiciary, of course, but that won't be the case without that.

Anyway, I specifically cited what was "purposely framed" -- the original public meaning included an understanding that "due process" and "equal protection" develop over time as it is applied to specific situations, and the law and facts develop.

==

For those interested ...

Original Meanings: Politics and Ideas in the Making of the Constitution by Jack Rakove (someone with special expertise), notes that Edmund Randolph gave the committee of detail this advice:

In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events. and

2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarrily [sic] differs from that of law.)

The Framers themselves did not have fixed ideas on how to properly apply all of these things. Experience would determine how to apply them. The play in the joints here would apply to all three branches of government.

[bernard11]

No it won't.

Yes it will. Do you disagree with Miranda and Gideon?

Didn't they represent a change in what is and is not due process?

When did coerced confessions become unacceptable?

What were a prosecutor's obligations before Brady?

I think it is wrong to argue that behavior contemporaneous with the drafting limits the meaning of Constitutional phrases.

First, people do not always behave in a manner consistent with their stated ideals.

Second, social mores, including various prejudices, long-standing practice, extreme majoritarian views, may easily blind one to the full implications of Constitutional provisions.

Finally, changing knowledge, technology, even changing opinions may affect meaning.

The difficulty with many originalist interpretations is that they use extensional meaning - examples drawn from practices of the drafting era, rather than intensional meaning - an effort to understand what the words mean.

[TwelveInchPianist]

“No it won't. If you do that then you've surrendered all legislative and executive authority to the Supreme Court who can "decide" that this or that meets the newly made (by the Supreme Court) requirements.”

Exactly. Hopefully no one thinks courts can decide that the country has evolved to the point where no process is necessary to incarcerate or deport people, for example.

[TwelveInchPianist]

Or that trial by an AI “jury” satisfies due process.

[LawTalkingGuy]

Also worth noting that the groups pushing for the biggest constitutional changes are often self-described originalists who insist meaning is fixed. Trying to end birthright citizenship after 160 years based on some new theory that supposedly reflects the fixed original meaning of the 14th amendment is a particularly stark example of trying to change the constitution to fit with the times without amending it.

[minus the clever name]

This is false too. The meaning of the Constitution and how that came to be has only recently been appreciated, with the publishing of the ratification debates, the work of Lutz and others on the 18-20 state constitutions that preceded and most of all on the 'higher law' background of inflexible and unchanging first principles and natural law.

[Krenn]

To be fair, even in the ordinary technical details of daily life, the constitution is flexible enough to still work as the country changes.

The constitution was originally written for a population of about 4 million people. We're now pushing 340 million.

The constitution works about as well as could reasonably be expected, under the circumstances. It actually is kind of surprising that we're still keeping the country operational under a constitution that's approaching 240 years in continuous use. Most states and countries are lucky if they get 40-80 years out of a really good well written constitution. Average is closer to 20.

The change in typical population size of each congressional district, from 33,000 to 700,000 over time is not ideal, but the constitution still works. The constitution still works with various uses of electronic voting and even with proxy voting within the halls of congress. The constitution managed to remain 'good enough' to go from the days of handset-type printing presses to modern video livestreaming, without the first amendment losing all meaning. The second amendment is a little more... vague and disputed about what it really means, but really, things could have turned out way worse than the current 'average' reading of the 2nd amendment where semi-automatic weapons are mostly protected, but automatic weapons are mostly not protected. Most other countries with constitutions written in the last hundred years haven't protected firearms rights nearly as well as our founders managed 240 years ago.

Our jury system still mostly works, even as jurors have gotten way stranger over the years, what with growing up with police procedural shows and cell phones and all. The electoral college system has been repeatedly taken out to a back alley and had it's knees broken, starting as early as the election John Adams, but somehow, the electoral college system is technically not dead yet! That's actually really impressive considering how many self-owns the original constitution contained, with it's naive belief that national political parties weren't going to be a thing.

The constitution has survived in the face of gerrymandering, civil war, world war, cold war, multiple economic revolutions, including the second industrial revolution, the fertilizer revolution, the digital communication revolution...

The constitutional is just specific enough to be useful, just vague enough to adapt to changing baseline reality, and just redundant enough to still keep working even after entire sections have been rendered either almost meaningless or almost unstoppable.

We honestly should kind of think about normalizing the concept of an 'unstoppable zombie constitution'. It won't die, and it won't stay dead, and it keeps almost mostly kind of working anyway! Even when every odd-numbered generation of citizens keeps fundamentally changing both how they read the constitution, and how they think the english language works! not to mention the changes we keep making to our 'normal' laws, or how we interpret those laws, even ignoring the purely constitutional stuff....

[SRG2]

What is commonly overlooked when people talk about original meaning is that we may all agree on that meaning of the words while disagreeing with meaning of the clauses.

This is due to what one might describe as the difference between elements and sets. When a law refers to a set, does it hence cover the elements of the set as understood at the time, or what current elements are given the same meaning of the set even if the elements have changed.

For example, "cruel and unusual" is a set of punishments, There is little about about what those words meant - Scalia and Breyer, for example, might be in agreement. Where they disagree is the elements of the set. Scalia thinks that the elements are what would have been the elements as of 1789/91, while Breyer would use the same definition but would apply it to elements as of today.

I note that Scalia was inconsistent here. He said that "cruel and unusual" apples to the elements then, but "arms" applies to current elements.

[SRG2]

little about

little DOUBT, sheesh...

[bernard11]

Good explanation, SRG2.

Suppose a 1955 statute somehow regulated "imported cars."

Would it cover Japanese cars, which were not imported until 1958, or only those from England, France, Italy, and Germany?

Of course such a statute would provide a definition that included imports from Japan and elsewhere, so it's sort of a silly question, but what if it provided no definition?

And of course the Constitution provides no definition of "due process" or "equal protection," leaving us to decide.

[Supremacy Claus]

[JoeFromtheBronx]

My favorite history-related movie co-starring Chris Farley is Almost Heroes.

"When the history books are written, Lewis and Clark will be but a footnote to a footnote, and I, sir, will be the note!"

[Krayt]

The Constitution is built to change with our country. It has a deliberately laborious amendment process to stop weasels from augmenting their power, not just at their whim, but using the gift of gab to stir the political winds of passion.
.
Get your proposals past the Senate and send it out to The Several States and The People, where they will ponder it for years, and, when passions have cooled, if it they see it wise, will approve it.

Oh, that book's subtitle (or sub-subtitle, or sub-sub-subtitle, stop me when we get to the last cover blurb) usually means a desire to short circuit the power grabs, easing them into existence, not by amendment, but by rubbing their chins and announcing fait accompli, by ones enfantasied the goodness in their hearts authorizes easy power agglomeration by the power mongers.

Yet they rely on the laborious amendment process themselves to stop wildly popular amendments.

LIKE...Balanced budget

LIKE...Term limits

Can't have easy changes there, even if they pass not just Democracy, but supermajority Democracy, say the lovers of Democracy, the Defenders of Democracy.

Well, they like term limits for the Supreme Court, anyway. Something the Republicans liked for 50 years, both swapping sides recently in the never ending game of situational ethics power monger mania. Situational ethics: the holding of a philosophical principle in high regards when it supports an already decided-upon position, and the pooh poohing of it for a different position when it gets in the way.

It's a standard tool of soulless power mongers. As Dr. Chandra said of HAL in 2010, "He was told to lie, by people who find it easy to lie."

[Krayt]

And, of course, note they are now virulently, and rightly, finally, opposed to easy power agglomeration by those with the gift of gab.

For this year and the next three anyway.

[wvattorney13]

If those things are so "wildly popular" why don't we elect congressman who pass balanced budgets and step down after a few terms?

[Currentsitguy]

It's because, as Rush Limbaugh was fond of pointing out, if you actually poll voters what they will tell you is that Congress is corrupt except for their Rep, who is pretty good at bringing home the bacon.

[Krayt]

The People can realize they are their own worst enemy on some things, and work to correct their own excesses.

Why are you afraid to send these amendments out? Why are you afraid of Democracy and The People, which you use as vox populi vox dei in ever other context, which that final blurb on that book merely restates?

I might as well ask why all the loudmouthed Hollywood folk don't donate 80% of their income to government, as a sign of good will towards tax increases on the rich.

Which tax increases, by the way, I'm amenable to, but only in the context of a balanced budget amendment. Both parties use new revenue as argument to spend more, not lowering borrowing.

[wvattorney13]

Do you want confiscatory tax increases that will destroy the economy or deep and devastating cuts to entitlement programs? Or just really bad results to both? Because that's the only way to balance the budget.

I used to be for both of those amendments, but it is time that people and politicians get real instead of pledging empty statements. It's like saying you want to lose weight but don't want to stop eating so much or exercise. Choices have to be made that nobody is not only not willing to make, but not willing to propose.

Have we seen any Republican plans to balance the budget?

[Krayt]

I do not want confiscatory taxes. I argue against the seizure of post-tax wealth, or unrealized investment gains. Neither is in the spirit of very clear Constitutional instruction that any takings must be compensated.

But a tax increase would be fine, if accompanied by a balanced budget amendment. Not the optimal solution, but you need to seize the huge half-step forward.

[bernard11]

No. We saw them increase the debt by $1.3T in 2017, and I think they are going for a bigger number now.

They are arsonists, not firefighters.

[John F. Carr]

Josh Blackman teaching children sounds like a sitcom premise. He's a conservative legal scholar. They are an ambiguously gendered purple-haired liberal. Two teachers, one classroom. Can they make it work? (With a rotating cast of paraprofessionals who get driven away every week by one, the other, or both.)

[ReadMore]

As a child, had Josh Blackman shown up as my teacher, I imagine I would have first asked "did Weird Al have a child?" And then I would have wondered "why is Weird Al's kid so fat?"

[JoeFromtheBronx]

His tone is often childish. Maybe he is missing his calling.

[minus the clever name]

You say 'conservative' but you say nothing about the first principles and the natural law, inflexible and unchanging, which is what the best Conservatives conserve: Jaffa, Thomas G West, Rob Natelson, et al.

[Dr. Ed 2]

He would be gone inside of a week

[JEP41]

"The Constitution is hard to amend compared to a lot of state constitutions ...."

Where I live, Florida, I think we need more than just making it harder to amend the state constitution; which can be, and often is, done by referendum here. When amendments are proposed in Florida, there's a lot of fussing about things that sometimes seem trivial.

But I wish someone could explain how we can allow a constitutional amendment to specify the minimum ratio of students to teachers in public schools.

The Florida supreme court plays a role in screening whether the electorate is allowed to vote on proposed amendments, but that process seems faulty to me.

Is there a concept that can (should) control what types of limits and mandates may be constitutionally placed on governments? Would such a concept have prevented the above referenced Florida constitutional amendment.

[My solution to the specific amendment I referred to would be to constitutionally ban public schools, in language similar to the federal constitutional freedom of religion protections.]

[Krayt]

Not a big fan of state constitutional referenda, when simple transient majorities are sufficient, and subject to demagoguery.

"No it isn't!", screams the demagogue with a smile on his face. "It's the Will of The People!"

"Like Prop 8 in California back in the day?"

"Shut up!", he explained.

[Davy C]

My solution to the specific amendment I referred to would be to constitutionally ban public schools

I'd actually give that a negative chance of passing, in that by proposing it you'd actually make it more likely to pass the opposite and get an amendment saying everyone has the right to a public education.

[Frank Drackman]

The Scene where they end up singing "Superstar" along with Karen Carpenter was great, so who in the "Conspiracy" doesn't get a little misty eyed with that tune? Nobody? Yeah, right, the same ones who didn't cry when Ole Yeller got shot.

Frank

[Flight-ER-Doc]

I am sorry that ABC no longer plays their "Schoolhouse Rock" on TV. The episodes titled "I'm just a bill", and "The shot heard around the world" should loop on every legislative branch computer 24/7

[Flight-ER-Doc]

Oh, and The Preamble, of course.

[Doug Heffernan]

Those are good episodes of Schoolhouse Rock. My favorites episodes are "A Noun Is A Person, Place Or Thing" and "Conjunction Junction". Although for the latter, they include disjunctions under the rubric of conjunctions, which still bothers me.

The existence of the series in the first place was to somehow make it appear that targeted Saturday morning programming for children that mostly peddled toys and sugary cereals had an educational component and was using the broadcast spectrum consistent with the public interest.

To the extent that broadcast television is at all still relevant, all of that socialism stuff has been shed in favor of more commercials. Not that many children consume much broadcast television.

[David Nieporent]

For the record, they are all available on Disney+.

[nburney]

Let me know if you want an illustrator…

[Dr. Ed 2]

John Hancock did not write the Constitution!! He was way too busy being governor. Now Adams...

[Dr. Ed 2]

Popular Hancock defeated unpopular Bodion in the 1787 election for MA governor.