The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand
If the Constitution is held to mean something different than it was understood to mean when it was ratified, isn't that essentially overturning the ratification vote? And if so, why then could the ratifying states not lose the Union? Other than Lincoln's doctrine of the Big Battallions?
The questions are rhetorical.
"If the Constitution is held to mean something different than it was understood to mean when it was ratified, isn't that essentially overturning the ratification vote?"
The problem is that people have been debating what "the constitution was understood to mean" for decades, probably centuries.
Everyone (including your host, Sunstein, Scalia, Obama, professor Volokh, Pelosi, you and me) have their ideas about that.
For all of us, those ideas are shaped by how we were raised by our parents, teachers, society as a whole, our peers, and everything else that influences us.
While a literal interpretation of the constitution sounds like a reasonable thing to many conservatives (a term that itself is incorrect, at least as understood by the left who think it means we're opposed to any change at all and want everything to always remain the same as it was at some point in the past or present, or revert to that past), many others just as correctly claim that how we understand the literal text may not be how people at the time it was written would have understood it, and the debate continues.
Take the word "militia", a centerpoint of the 2nd ammendment discussion that's been raging for decades.
Conservatives state that the militia historically means every free citizen.
But is this correct? In the revolutionary war there were no citizens, only residents (who often were citizens of Britain of course). So literally the right to keep and bear arms should not be restricted to US citizens but to all US residents, yet even conservatives usually don't agree with that.
Even better, all those in the continental army (the original militia) were under the law of the land at the time criminals. Should we therefore extend the right to bear arms to criminals?
And let's play devil's advocate on what arms. The 2nd ammendment doesn't state what arms should be allowed, nor does it state that no arms can be banned.
Often it's read to not ban any weapons fit for use by a single person, but nowhere does it state that someone can't own a crew served weapon, a land mine, etc.
So a literal interpretation of the 2nd ammendment would allow someone to purchase a fully loaded F-16 complete with Maverick missiles, Sidewinders, and a B61 nuclear warhead.
Yet all those (except the F-16, but it would be stripped by law of a lot of its technology first, like the gun, radar, etc.) are banned from private ownership and very few if any people object to that.
So even those who (IMO correctly) try to interpret the constitution literally make assumptions about what the exact words mean and have those assumptions influenced by their political, social, financial, etc. background.
I'd say the USSC overturning its prior decisions if those are found to have been flawed is a good thing.
Think Kelo :) (which overturned a constitutional ammendment as I read it, and therefore should be overturned).
As for who 2A applies to, I prefer to go with a strict interpretation of the relevant clause, "the right of the people to keep and bear arms shall not be infringed". People. Not "citizens", not "residents". So my opinion pretty much boils down to "If you're not in jail, you have the right to keep and bear arms."
Though, I also take the view that the Bill of Rights isn't a grant of rights, it's rather a recognition of previously existing human rights. So, in my not exceedingly humble opinion, the entire Bill of Rights applies not just in America, but all over the world. Many (most? all?) places have laws which abrogate those rights, but the human beings in those places still have them.
Of course, I'm not a conservative, I'm a complete radical.
However, there is recorded history from which the "original public understanding" can be gleaned. Read, for example, the excellent research done by the 5th Circuit court in the Emerson decision. For enumerated rights, it's not that difficult to do, and it's pretty damned obvious when the court is "constitutionalizing its personal preferences."
It's in the unenumerated rights that things get more difficult.
"If you needed any more evidence that Cass Sunstein doesn't understand the founding philosophy of this nation, that book title is enough all by itself."
That does not follow: He _may_ understand it in exceptional detail. He appears to not _agree_ with it. Take your pick as to which is worse. As far as I'm concerned, he can drop dead. With a great deal of pain along the way being preferred.
Actually BROWN didn't overrule any precedent. It held that racially separate education as it existed, and inherently, was unequal.
Really? What about Plessy? The unfortunate thing is that Brown did not simply apply the logic/position from Harlan's Plessy dissent - which captured everything wrong with the Court's holding.
Cass "Sunbeam" is promoting that "living document" garbage, claiming that the Constitution changes with the changing times. As i have said before, the Constitution was written not for the times, but for human nature, and that has not changed, except maybe to get worse. Witness McKlusky's comment, "Most of what Congress does id=s unconstitutional, but we do it anyway." Utter arrogance, from both the Congressman and Sunstein.
I wonder if he'd have a problem if his book publisher decided that his contract was a living contract and should be changed to meet current demands of social justice?
I'd like it if someone could just define "social justice" and illustrate how it differs from plain old everyday justice.
Easy. Multiply by zero and add the result you want.
So, after giving us your discourse in "understanding of meanings," as it were, what gives one person, even in a fancy black robe, the power to tell someone else what those rights actually are?
Pretty much seems to me that MY rights are none of YOUR business, and that MY rights get to be interpreted BY ME, and NO ONE else, not even SCOTUS. Fuck'em. They've been WRONG before, and I'm not waiting for those cocksuckers to grow a brain.
This "flexibility," for lack of a better term, in interpreting what was written down, over two centuries ago, as a rein on governmental power, is precisely the idea that has us on the precipice of a police-state; TSA goons given authority to do anything except ass-rape you when flying (all in the name of "safety"), to wiretapping without a warrant (in the news just yesterday), to (this is TSM, of course) getting permission to buy a firearm, all the way to, as you mention, the overturning of the Fifth Amendment in Kelo...ad nauseum.
Sorry, not buying the angle of change (wink, nudge), only the differences in how one might interpret their own freedoms.
Everything else is, in my experience, an effort at institutionalizing slavery, in one form or another.
By voting people into elected office to represent you, you give them the right to make and interpret the law.
That's what they're there for. In the case of USSC judges, that law happens to be the constitution of the United States.
Now, those 9 men (and now women) aren't elected by you directly but rather they're elected by your elected representatives.
But that makes them no less people elected to do just what you tell us you don't want them to do.
If you want to be the one making those decisions for yourself (and for others, remember oftentimes your actions affect other people, including maybe their rights to things like privacy, peace, pursuit of happiness, and whatever) you should run for elected office and if enough people agree that you're a suitable person to represent them you'll get elected.
In ancient Athens it was easier. Anyone who had rights had a direct vote in all public decisions (including laws).
But that's hardly practical in a state of 100 million rather than a few hundred who have the right to vote.
If I may, you missed the one of the most important parts about "Nudge".
The idea behind the book is simple: we all have an inner Homer Simpson and an inner Mr. Spock who run our decision making. While the Ruling Class Elites are under the control of their inner Spock, you're ruled by Homer. You're too stupid to make good choices, so the wise and wonderful government will make them for you.
Remember Michelle Obama asking the restaurant association to put apples instead of fries in kids' meals? Straight, word for word out of Nudge. They'll make them put the fries elsewhere on the menu so that kids don't see them. Can't get them unless you ask. If that doesn't work, they'll make the fries cost a little more than the apples. If that doesn't work, well, they'll just have to take them off the market completely. You enjoy that weekly cigar? It's too linked to mouth cancer, don't you know. We'll have to quadruple the taxes on them. Or more. Or take them off the market. It's for the children, you know. By the way - that anger and revulsion you're feeling? That "who the #?*! do they think they are??" feeling? That's just another symptom of the "optimism and overconfidence" that your inner Homer gives you (last paragraph of that Slate piece).
I have been reading (and writing) about Mr. Buttstain for a while now. I think Beck is mostly right when he calls him "the most dangerous man in America".
I haven't read Nudge, but I can tell already that it's RCOB material. Thanks for the link.
"[T]here's a little Homer Simpson in all of us. Sometimes we have self-control problems, sometimes we're impulsive and that in these circumstances, both private and public institutions, without coercing, can make our lives a lot better. Once we know that people are human and have some Homer Simpson in them, then there's a lot that can be done to manipulate them." - Cass Sunstein
Isn't he the guy who believes animals should have the same rights as humans, and be able to sue humans and win?
That's the guy.
I can't think of a single thing that I could say and remain any sort of gentleman.
How about, this is what comes of too much inbreeding.
"They show that by knowing how people think, we can design choice environments that make it easier for people to choose what is best for themselves"
To which C.S. Lewis has already refuted:
"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."
Any system that only offers the illusion of choice should be shunned and disposed of like any disease carrying vermin.
Let's try Sunstein's idea of changing meanings of laws as time goes by. Imagine a future where some race or religion becomes very unpopular. Some genius in a black robe "discovers" that the 13th amendment should only apply to chattel slavery of blacks; therefore it's OK to enslave the unpopular group. After all, times have changed, and the definitions of involuntary servitude have changed too.
Or imagine a future where "Congress shall make no law abridging freedom of speech" is interpreted as meaning that COngress can abridge free speech where it offends someone. Presto, the magician in the black robe wipes out any political discourse he doesn't like.
If we have laws that do not have fixed meanings, we don't have laws. We have Judges ruling as oligarchs.
The Constitution is not a complicated document. A smart, intellectually honest tenth grader can understand what it says. It takes an Ivy League law degree to rationalize it into something that conforms with the political prejudices of the reader.
Back when Reynolds was saying "If you stop Sunstein being appointed, you'll probably see somebody worse nominated next", I thought "Bullcrap". A while back I wrote him and asked "Hey, just how much worse a clown COULD he have nominated?"
Wouldn't surprise me if he'd told the 10 10 clowns their ad was a masterpiece.