Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

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The idea that the constitution is a written document that means what it says, or what it was intended to say, is neither propaganda nor was it invented in 1980. In fact, it’s obviously correct and it’s wild that we ever pretended otherwise.

We aren’t talking about some ancillary provision here, or some detail where we could expect judges to fill gaps in the written text. The very first thing in the Constitution after the preamble is Article I, Section 1, which says: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” And Article I sets for a detailed process for two houses of Congress working to make law, with the signature of the President. It’s unambiguous that the Constitution only allows Congress to make laws.

It’s so clear that nobody pretends otherwise. Even proponents of the administrative state rely on the legal fiction that administrative rulemaking is an exercise in enforcing the law, not making the law. So in these cases we are simply arguing about the permissible scope of this legal fiction.

Your consequentialist arguments are irrelevant. Whether Congress has the bandwidth or expertise to take up particular issues doesn’t change the governmental structure the Constitution created. The framers went to a huge amount of trouble to provide for two houses of Congress to make a law, and then have the President sign each one. The document obviously doesn’t allow that power to be exercised by unelected bureaucrats in an executive branch agency.

> Your consequentialist arguments are irrelevant. Whether Congress has the bandwidth or expertise to take up particular issues doesn’t change the governmental structure the Constitution created.

It seems fair to say that you ascribe more importance to rigid fidelity to a 200-year-old document — written by people who knew far less about the world and lived in a much smaller and less-populous country — than to addressing the practical challenges of keeping a nation together, as circumstances change over the decades, in a semi-reasonable manner that kinda-sorta fits the document's text. In Christianity that's been referred to as "bibliolatry" — the idolatrous worship of the literal text of the Bible, in the manner of a golden calf.

https://en.wikipedia.org/wiki/Bibliolatry

well, then go for constitutional amendment.

The system is rigged against doing so.

Worked fine in the past. Consider Prohibition, for which the United States managed to pass not one, but two amendments just fine.

The reason it is hard to pass amendments today is that there is no real need to do so: the system routinely works around the plain language of the constitution, so why bother changing it?

Again, Prohibition is useful case study: in 1970s and going forward, the federal government managed to pass a bunch of laws prohibiting many drugs other than alcohol, without passing any constitutional amendment. Why was it constitutional? If it was, why the early 20th century Americans thought they need to and succeeded in passing an amendment to ban alcohol?

The answer is, obviously, because they did have to do that according to plain reading of the document, and because people at the time cared about the following law as it actually exists more than immediate political expediency. Think about it: at the time, pretty much nobody believed you can do something like this without passing amendment, otherwise the congress would just pass the relevant bill and wouldn’t bother with amending constitutions.

So, what changed in next 50 years to completely change the attitudes? The answer is that the American system of law and government has been slowly but steadily destroyed, and replaced with a related, but ultimately different legal and political regime.

> So, what changed in next 50 years to completely change the attitudes? The answer is that the American system of law and government has been slowly but steadily destroyed, and replaced with a related, but ultimately different legal and political regime.

What you describe is a consequence of another, more-nuanced phenomenon at work: Over time, the population of the U.S. has increased, and the political demographics have changed. But ruthless partisan gerrymandering — plus the massive overrepresentation of small, rural, and conservative states in Congress — have given a minority of the voting population an effective veto over what would be salutary constitutional amendments.

As a result, we're stuck with a system of government that in many ways is creaky, outdated, and undemocratic. People wanting to implement the aforesaid salutary changes are forced to work within the existing system — essentially, hacking it — instead of the more straightforward approach of a constitutional amendment, because entrenched interests don't WANT such changes.

Want examples? Here are a few, off the top of my head:

• Gerrymandering allows a political party with a bare majority in a state's legislatures to create congressional- and legislative districts whose borders are just bat-shit crazy. But the nakedly-partisan "advantage" of such districts is that they give the party in power the ability to carve up the state in a way that gives that party a number of legislative seats that are far, FAR out of proportion to the party's actual voting strength. That, in turn, makes it almost impossible for the other party to take control, even when the other party has a majority of voters.

• Under the "Hastert Rule" in the House of Representatives — named after disgraced and imprisoned former House speaker Dennis Hastert, and applied by every GOP speaker since: When the GOP is in the majority in the House, no bill is brought to the floor for a vote, even if it would have the votes to pass, unless a majority of House Republicans support the bill.

So: No constitutional amendment reflecting any kind of Democratic policy preference would ever get past a GOP-controlled House. And thanks to gerrymandering, even in a Dem-controlled House, no Dem-supported amendment would likely ever get the constitutionally-required 2/3 vote in the House.

Incidentally, discharge petitions don't work to force a floor vote in the House: Any House member who signs a discharge petition is vulnerable to being punished by party leadership (because the names of signers are known). Moreover, House members in "safe" districts — which is most of the districts — are afraid of being "primaried" by the radical nut-jobs in "the base" of their party, who [again due to gerrymandering] wield undue influence in the primary election process. We saw several examples of that in the 2020 and 2022 elections.

• The Senate's filibuster rule requires 60 votes to move any kind of controversial bill — even though (as is well known) the small states already have massively more power per citizen in the Senate than do the large states. Example: Wyoming, population 583,000 and change, has the same number of votes in the Senate as California, population 39 million, or Texas, population 30 million.

So: Senators representing a decided minority of U.S. citizens can blockade a constitutional amendment.

• Still another gerrymandering effect: Constitutional amendments by one party are unlikely to be approved by the constitutionally-required number of state legislatures.

I could go on.

> What you describe is a consequence of another, more-nuanced phenomenon at work: Over time, the political demographics of the U.S. have changed

I agree, but in my view the relevant demographic change was mass immigration from continental European countries outside the Anglo legal tradition, which resulted in the election of a President that threatened the Supreme Court until it relented and effectively rewrote the Constitution.

> gerrymandering, plus the massive overrepresentation of small, rural states, have given a minority of the voting population an effective veto over what would be salutary constitutional amendments.

Both are complete red herrings. Neither party has won more than 55% of the House popular vote in my lifetime. Even if our system was exactly like Germany's--proportional voting in the lower house, 2/3 majority required to amend the Basic Law)--no party would have been able to pass a partisan amendment in even the House alone.

It's theoretically possible that Senators representing a minority of voters could block an amendment, but it doesn't actually split that way in practice. Biden carried 25.5 states (excluding DC) which exactly reflects his 51% of the popular vote. Obama in 2008 carried 28.5 states (57%) with 53% of the popular vote.

> It's theoretically possible that Senators representing a minority of voters could block an amendment, but it doesn't actually split that way in practice. Biden carried 25.5 states (excluding DC) which exactly reflects his 51% of the popular vote. Obama in 2008 carried 28.5 states (57%) with 53% of the popular vote.

That's useful info. (I'm assuming accuracy.)

EDIT: I just realized what you did with your Biden and Obama examples. Counterexamples: Bush the Younger and Trump were both elected despite losing the popular vote — in Trump's case, bigly.

But that’s my point. Trump won more states than his share of the popular vote by winning some of the exact same states by which Obama won more states than his share of the popular vote. Clinton did the same thing, twice (even if you give half of Perot’s votes to him). What you’re talking about isn’t a structural disadvantage to Democrats. In fact it’s a natural advantage to Democrats, who are in theory the party in opposition to concentrated capital in Wall Street and Silicon Valley.

Regardless, it has nothing to do with amendments. It only makes a difference in very close elections (0.5% for Bush, 2.0% for Trump). In any case it makes a difference you’re nowhere close to the mandate for amending the constitution anyway.

> you’re nowhere close to the mandate for amending the constitution anyway.

And that's my point. We can think of government as a complex machine controlled by software that's designed to limit what the machine's operators can do:

• The prerequisites for updating the software are onerous.

• The updating process is jealously "guarded" by any number of special interests who wield outsized influence and, by and large, prefer things the way they are, thank you.

So as a practical matter, it's essentially impossible to update the machine's software — even when updates would be useful to accommodate changes in circumstances.

No competent engineer would regard that as acceptable. (It's a bit reminiscent of the liberum veto in the Sejm [parliament] of the Polish-Lithuanian Commonwealth [0], albeit not quite as bad.) Small wonder that lawyers have responded by hacking the system, using, e.g., the 14th Amendment and the All-Writs Act.

[0] https://en.wikipedia.org/wiki/Liberum_veto

> which resulted in the election of a President that threatened the Supreme Court until it relented and effectively rewrote the Constitution.

You're referring, of course, to the "conservative" Supreme Court majority that, in the mid-1930s, kept invalidating the emergency legislation enacted by FDR and a Democratic Congress to cope with the global disaster of the Great Depression, and to FDR's (ultimately-abortive) effort to pack the Court in response.

Dealing effectively with the Great Depression was evidently less important to the SCOTUS conservatives than was fidelity to a cramped interpretation of the Constitution and of the role of the federal government. That interpretation had hamstrung the Hoover government from dealing with the crisis; state governments weren't getting the job done either (and couldn't).

In 1930-32, Hoover and the GOP seemed to be fixated on conforming to that "conservative" view of the role of government. It got them tossed out of office on their asses and losing political power for decades.

In contrast, FDR and the Democrats took an expansive view of the role of government. They gave priority to trying to fix the problems affecting so many. Voters rewarded that thinking by keeping the Dems in power for decades.

One can conjecture that FDR's landslide victory in 1936 was because many people know comparatively little about "the Constitution." To many, "the law" is something for others to concern themselves with; what matters to them is whether the government is getting results, helping to mitigate people's problems while not interfering unduly in their lives. FDR recognized that; Hoover, the GOP, and the conservative SCOTUS majority seemed not to.

(In a similar vein: There's a piece in today's NY Times about how Hamas is gaining support in the West Bank because of releases of Palestinians held prisoner by the Israelis. [0] As my late dad used to say: If your rain dance doesn't produce rain, people aren't likely to care that you faithfully followed the prescribed dance steps — what they care about is results.)

Short-sighted thinking? Maybe. But it's a brute fact: Many, many people view the world in that way; they get to vote — or to take up arms ....

Doubtless you know the saying about the Supreme Court's collective change of heart in the late 1930s: "A switch in time saved Nine." That switch conceivably saved the country from revolution — possibly even of the kind that led to catastrophe for Germany in 1933, in Italy in 1922, and Russia in 1917.

[0] https://www.nytimes.com/2023/11/29/world/middleeast/west-ban...

> It seems fair to say that you ascribe more importance to rigid fidelity to a 200-year-old document than to addressing the practical challenges of keeping a nation together, as circumstances change over the decades

The requirement to follow the written text follows from the very nature of a written constitution. It’s not a matter of preference or priority. If I have a car rather than a boat I’m going driving rather than sailing, and it doesn’t really matter that the bridge is out and I have to go the long way around to cross the river.

The other approach isn’t an alternative way of following the law. It’s a way of intellectually justifying breaking the law.

The article goes into detail about how the framers did not do this thing you claim they did; for instance, in Hamilton's defense of the Senate as trier of impeachments, rather than the judiciary, in Federalist 66.

Federalist 66 indicates the opposite. That the principle of separation of powers is so entrenched in the Constitution, that objections were raised to giving the Senate the quasi-judicial power to try impeachments, even though that was (1) explicitly incorporated into the Constitution by design, and (2) was designed that way to address the separation-of-power problem that could arise if the executive could prosecute legislators in the courts.

The framers thought very hard about, explicitly codified, and had to justify even that explicit and special-purpose deviation from the separation of powers.

So just in this one very specific case of the Senate literally taking over the Judiciary's entire role was it the legitimate design of our system that there be shared responsibility.

In this one case which doesn’t even seem necessarily to be a judicial function to begin with (since it relates to the internal working of the government, not the public), the framers not only wrote the deviation from separation of powers into the constitutional text, but felt the need to justify that departure by explaining that in this unique context, mixing the powers is necessary to preserve the separation of powers overall.

And the courts-martial system?

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