A bad grade that changed the U.S. constitution (2017) (opens in new tab)

I give your argument a B-. Not for any particular reason. I just felt like it. Was that a good use of your time?

Many different groups have mutually conflicting expectations about what grades are supposed to be for. But one thing I think students, teachers, and prospective employers would agree on is that they should be rooted in some measure of performance or ability. Otherwise they serve no socially beneficial purpose at all. What is the point in taking a calculus exam if you'll just get 0/100 because the professor doesn't like your handwriting?

This way you will produce students that act even more capriciously and arbitrarily toward others.

Yeah, no reason to instill a sense of fairness in students, eh? :P

It is entirely possible for this paper to contain a "C" quality argument even though its conclusion turned out to be true-- The purpose of an academic paper is to present a convincing argument rather than simply making a true assertion.

I mean, the whole article is framed to indicate that the poor grade is what resulted in this mans pursuit to amend the constitution.

The headline is literally "The Bad Grade That Changed The U.S. Constitution"

The teacher goes on to say of herself "You have, just by making this fellow a grade he didn't like, affected the U.S. Constitution more than any of your fellow professors ever thought about it, and how ironic is that?"

The article also insinuates that Watson only began lobbying to change the grade. "Most people would have just taken the grade and left it at that. Gregory Watson is not most people."

I agree. We are where we are because there is a trend of appointing federal judges that grant the federal government more power. A lot of rulings at the federal level are morally bankrupt, easiest to see in the ones regarding the interstate commerce clause.

An inability for states to rule themselves is, I think, the driving force behind identity politics today.

The U.S. history with slavery and Jim Crow laws tell me that it's not always perfectly viable, and is sometimes very difficult.

I'm not so sure about that.

A federal state as a tight union of autonomous non-sovereign states is viable. We have plenty of examples for that. An EU-style loose union of sovereign states also works, if only barely. However, there is no evidence that a loose union of non-sovereign states would work in the present-day world. It might work, but the question is very complex, and we can't hope for a confident answer without actually trying it.

It’s too easy for citizens to move between states. You no longer need to cross the Atlantic in a Conestoga wagon. This freedom of movement punishes states that attempt to increase their quality of life too far above the national average far more than it punishes low-quality states with brain drain.

The history of the US has been a history of power centralization for good reason, unfortunately. The experiment of decentralized state level authority has been found wanting to the tune of a civil war and a Great depression, both of which were addressed by centralizing federal power.

How well did the states do at running their own vaccine programs? How well did it work when some states recognized gay marriage and others did not? Having nationwide consistency is important for many issues.

* Offer only applies to straight, white men not romantically entangled with a person of color. Offer void where prohibited.

That is what was supposed to happen. The Federal level has way too much power today.

I would be interested in reading some detail of the "wall of separation" of church and state being something that the Supreme Court made up. It seems quite self evident from the text of the First Amendment. And the quote seems to come directly from Jefferson?

The commerce clause is not worded expansively. The supreme court over the last ~century has expanded it expansively.

As far as the right to privacy, see the 9th amendment.

In my view, having executive agencies propose rules to congress would have been a much better solution. Why is prescriptive administrative state (i.e. outside of expert analysis that informs the decisions of others) "necessary"?

Sovereign immunity is also made up.

There's a ton of things that were just so obvious as to not require writing down.

> By contrast, there are a number of things the Supreme Court has simply made up. Conjuring a “right to privacy” from “penumbras” of the other amendments is an example.

If you take the majority view from Griswold, I agree. But if you take the pre-Slaughterhouse view of the Privileges and Immunities Clause of the 14th amendment (yes, I although I loathe to say it, an originalist view), I don’t think a fundamental right to privacy can be thought of as that far fetched.

Sure, but I don't blame the Court at times for going "sure, we could reject this, and cause a couple decades worth of clear, widespread harm, which might generate enough political will to push one through" and noping out.

This was Scalia's position basically.. he always held that there is a process for changing the Constitution.

The Senate was there for the small states, which were evenly split between free states and slave states (whether or not you count enslaved people). Big states likewise includes free states (MA) and slave states (VA).

Don’t mix up the parts of the constitution compromising with slavery with the parts liberals just don’t like for unrelated reasons.

The optimal power ratio is one person equals one unit of power.

The problem is any change to the Constitution would require 2/3 of the states to agree. Many of those states require supermajorities to pass an amendment. Generally any change that's big enough to go into the Constitution is big enough that a few people will oppose it. A few people is all it takes. We can't even pass an "equal rights for women" amendment now in the year 2021.

Hell, we probably couldn't pass the 13th amendment today if it were required.

The constitution is remarkably vague about all manner of things. So, the argument that the "expansion of the government beyond what the Constitution allows" is really difficult to support on a textualist basis. What exactly did you have in mind?

The problem is that on an individual, person to person basis, people like me owe people like you a respectful hearing of what you think America is and how you think it should be and understand - this is the important thing - how you got there before telling you that it never was and why it should never be. And just flip that to whichever one of us has the facts on their side. But we don't have those conversations. We only relate to each other insofar as we signal our political affiliations.

As Thomas has argued[1] the privileges or immunities clause of the 14th amendment, now pretty much dead letter, was intended to fully and immediately incorporate the first eight amendments to the states. In fact there are historical records from the drafter of the amendment stating as much.

[1] I don't remember the case, it may have been McDonald or Heller.

Originalism doesn't mean do not evolve. It means evolution of society must be reflected in law through the laws passed by legislature that is elected by citizenry and not by judges. It is a valid frame of view just like activism.

You're right. Relying on it is insane. Which is why it's amendable.

The congressmen keep getting re-elected because they campaign on high-visibility make work jobs programs. Having separate primary elections does not help things, either.

The 14th amendment is pretty open when it comes to granting freedom and not allowing discrimination.

> No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The bill of rights didn't apply to states until the 14th amendment was passed. Before it only applied to federal laws. So yea, pretty much every bill of rights case is also a 14th amendment case.

> Is the 14th Amendment really written in such a way that you can justify just about anything with it?

The 13th, 14th and 15th Amendments to the United States Constitution are known as the Reconstruction amendments. They were passed in the aftermath of the Civil War to fix the fundamental problems in the 1792 constitution.

Reconstruction Amendments: https://en.wikipedia.org/wiki/Reconstruction_Amendments

The Bill of Rights (Amendments 1-10) had been held to only constrain the powers of the federal government.

The 11th Amendment had to do with citizens of one state suing another state. The 12th Amendment had to do with the details of electing a president and vice president, and dealt with the problem of the elected president and vice president being opponents of each other (imagine Hillary Clinton being Trump's vice president, and Trump being Biden's vice President).

The 13th Amendment abolished slavery. But it wasn't enough to say 'no slavery', as the freed slaves found they were still second-class citizens.

The 14th amendment said that citizens of the states are also citizens of the United States, and thereby they have all the rights accorded in the Bill of Rights, and required "equal protection of the laws". Section 1 is the origin of this branch of rights:

> Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Institute for Justice has some great podcasts about this period of history: https://ij.org/center-for-judicial-engagement/sc/14th-at-150...

Ep 1 - Before the Fourteenth: John Rock and the Birth of Birthright Citizenship - https://soundcloud.com/bound-by-oath/before-the-fourteenth

My efforts in the federal courts on behalf of my friend wouldn't be possible without the 14th amendment. (Summary: After the state supreme court shot me down, I found an attorney who was oddly familiar with my state court habeas corpus petitions and appeals. I said, "I don't even know that I can petition for habeas corpus on behalf of my friend." The attorney replied, "It's fully within your rights to petition for habeas on behalf of your friend, and the statutes are clear that you can. But you're dealing with a rural judge who will never rule against the community's non-profit mental health service provider." Me: 'Oh.' [I got screwed by the state judiciary.] Then the attorney said he couldn't help me, on account of his having already consulted for the person I was suing.)

Federal judges are supposed to be more insulated from local politics because they have lifetime appointments, and are thereby trusted to make politically-inconvenient decisions. In theory. In practice I think they have too much drudgery ("hard menial or dull work.") putting drug mules in federal prison to deal with fundamental mistakes in our treatment of the mentally ill. My district court judge passed the buck up to the court of appeals, who didn't want to deal with me either. I'm going to get a favorable ruling on my current appeal, I hope...

[edit: clarity]

in which the supreme court said that the constitution says that the supreme court can say what the constitution says.

and everyone went along with it!

There are countless papers on the subject, but this 1914 Michigan Law Review article is my favorite, and makes a convincing case that the principal of judicial review was assumed by the constitutional convention: https://www.jstor.org/stable/pdf/1274986.pdf (Edward S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, Michigan Law Review, May, 1914, Vol. 12, No. 7, pp. 538-572)

> That the members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, as I think it only proper to do, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: [...]

Basically, of all the convention members who had anything to say on the subject, 17 were clearly in favor. Those 17 comprised "fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution, and four of the five members of the Committee of Style which gave the Constitution final form." By contrast, only 3 members expressed a contrary opinion, and only 1 did so plainly--the other 2 basically disfavored any limits on the legislature, including the textually express limits.

The article later describes the evolution of judicial review in England and America, its roots in the Magna Carta and English Common Law, and how it had more firmly taken root in America (i.e. become a general principle of law that needn't restatement--many things were left unstated in the U.S. Constitution), whereas in the mid-to-late 18th century England and continental Europe legal philosophy ended up going in a much different direction as a consequence of political developments that were ultimately foreign to the American experience.

Also, one must note that England is a peculiar case. Parliament (through the House of Lords) was the Supreme Court of the land, and so it didn't necessarily violate the then nascent concept of Parliamentary Supremacy for the House of Lords to void or otherwise interpret a law seemingly in contravention of earlier passed legislation. This is noteworthy to explain how the concept of judicial review could remain consonant on both sides of the Atlantic, despite many modern English swearing up-and-down that judicial review was never accepted in England. Similarly, people like to bring up continental European examples of what a constitutional order would like without judicial review, but fail to mention that Europeans found countless aspects of English law repugnant. Just because those alternatives existed doesn't mean they would have made any sense to the sensibilities of American jurists.

In general I don't think there were many contemporaneous negative reactions to Marshall's assertion of judicial review in Marbury v. Madison; it was basically a non-issue. Almost all the commentary concerned the various other legal conclusions in his opinion (which had unanimous concurrence, FWIW), as well as a bunch of political balking--this occurred during a period of intense dispute between Federalists and Democrats leading to numerous constitutional crises, some of which aren't well known. There were a lot of gymnastics in Marshall's opinion, but they were a consequence of navigating the political environment. Indeed, grounding the opinion in judicial review, precisely because judicial review was relatively uncontroversial, is what gave it the necessary legitimacy to garner acceptance, IMO. To reject judicial review would be to reject separation of powers and the overall constitutional order as generally, if tacitly, understood by most American leaders; rhetoric notwithstanding, few were prepared to actually do that.

It's only in the late 19th and especially 20th centuries when American jurists began to seriously debate judicial review. But of course they were all over a century removed from the constitutional convention, and nearly as removed from Marbury v. Madison itself. Justice Story, who published in 1833 one of the first treatises of the American Constitution, thought judicial review uncontroversial. Story was a state legislator in 1805 and became a Supreme Court justice in 1811. Of all subsequent writers, he was the closet in time to the Marbury opinion and best able to appreciate the legal understanding of that age.

I know it's de rigueur to show how ahistorical modern constitutional law has become. But don't forget that many scholars who wrap themselves in supposed historical legitimacy often commit the same sins.

Eh, the Eastern Roman Senate ceased existing sometime in the 13 or 14th century, while the Eastern Roman Empire lasted up to 1453, so if we take a bit of a more expansive view on what Rome is than "the western half because that's the half closer to western historians" the senate fell first.

The Roman Senate was more of a social club for at least few hundreds years prior to that. You could argue it hardly existed before the fall, except in name (losing mostly all authority when Rome transitioned from a republic to an empire).

It's pretty amusing to imagine a future with a failed-US, and how existing institutions might outlive the country. I wonder if there's been any good books using that idea?

Sure they are. Michigan still has no murder statute. (There's a penalty statute, but the actual definition is common law).

> Only gun nutters believe in the right to self defense?

No. Only gun nutters believe the source of their right to self-defense comes from the 2nd, while the rest of us have that right whether there is a 2nd Amendment or not.

> Do you know who the militia is in the United States? Are you aware every able bodied male citizen between 17 and 45 are considered militia?

Are you aware that the purpose of a militia is not self-defense? It is common defense. Big difference. The 2nd has been gutted, and the assault on the Constitution continues.

> Who has the right to keep and bear arms? Does the constitution say that the "right of the people to bear arms shall not be infringed?" If you bear arms are you no longer entitled to self defense?

The right of self-defense is ancient, predating the rise of civilization and even the evolution of the human species, but if you'd like to point to a written source, how about the Magna Carta? Also, the 2nd does not say that at all unless you ignore the first three words, placed there, one could say, to underscore the importance of them. The 2nd certainly does not say, "the right of a person...." It is the right of The People. How it could be interpreted as an individual right is a bastardization and entirely against the clear intention of The Founders (and, again, we know this from the minutes of the Constitutional Congress... we know what they intended... because they debated whether to include self-defense and intentionally left it out, so we know they did not intend the 2nd to be any individual right).

Maybe the First Amendment means that all printed media should be free as in beer? Or that printing presses should be free as in beer? Or that religion and assembly should never cost anything? These interpretations would be the same kind of bastardization of The Founders' intent, grotesquely twisted from something noble and grand to something petty and cheap.

Your comment is a Straw Man. My intention was not to summarize the case. Changing the Founders intended meaning of the 2nd to include self-defense was really outrageously skew to the case itself, and entirely unnecessary and irrelevant to the case and the 2nd. It is brazenly false NRA propaganda from the early 20th Century come to fruition and provably not the Founders' intention. The case is incidental, because its effect on the 2nd that is relevant --because the subject was the "difficulty" in changing the US Constitution: it does not take 2/3rds majority of both houses of Congress and a majority of the States legislatures. All it takes is a senile gunnutter on the bench to go beyond the mandate of the highest court and the judicial branch of government: Judges do not legislate. Yet Scalia did, and that part of the decision came out of left field (the idiom would have worked better if it was right field, but that isn't the idiom). The 2nd had a purpose, the purpose was militias, whom the Founders were devoted to, to make a standing army unnecessary, to prevent the consolidation of executive power. But now as an individual right to be armed for the purposes of self-defense it leaves the nation with less and no protection against tyranny. But at least pride has been elevated from an indulgence to a virtue. The last proper exercise of the 2nd will be the Black Panthers at the Alameda County courthouse. That was how the Founders intended the 2nd to work, not as a way to say "don't touch my stuff," not as a source of paranoid mass-delusion.