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I don't think this is true. If the supreme court did things obviously false, and the executive disagreed, on something that mattered, and had popular opinion on his side, I don't think there'd really be too much trouble with him doing what he wanted.
This is just false. Supreme court justices are not infrequently honest, and trying to do interpretation, not fabrication. At the very least, they always are pretending to be interpreting the text, which does provide constraints on their behavior.
Treating the constitution with respect is a valuable norm because it does, in fact, constrain behavior. Less than it used to, as people kept stretching things, but it does constrain behavior, and usually in ways that make things better.
I'm not claiming the Court can't be defied. Obviously it can be, and in fact several of its recent pro-2A findings are being defied at this very moment in various states, most notably New York and California, and have been for years now. I'm claiming that to the extent that any outcome can be attributed to "The Constitution", it is actually happening because the Justices want it to happen, not because of the ink on the paper. There is no ground reality, there is no platonic form, and anyone who believes otherwise is fooling themselves. Abortion has both been protected and not protected by the Constitution, and the answer to the question of which state was "correct" is mu.
It is of course the case that things happen because they (in some sense) want them to happen; actions happen by agents. But pretty often, the reason why they want it to happen is because that's what they think the Constitution says, and they're trying to be faithful interpreters.
Why not? I think language has meaning.
This particular piece of language has managed to hold enough people in its sway that something vaguely approximating its meaning has been the basis by which we govern the United States of America.
If you try to strip out the Constitution from your understanding of the United States, you will understand it worse, not better.
No, it's not moot. The norm of following the Constitution is important and a valuable check against limitless power-seeking. That norm means that it's useful that we should try to care what the Constitution says. Further, interpretation socially recognized as correct helps to confer legitimacy. Social recognition of correctness of interpretation tends to correlate with correct interpretation loosely, at least, because many people can read.
Language has meaning to the extent that people are willing to cooperate in building and maintaining that meaning together. If they are not, then it cannot. For any deeper "meaning" than that, I think you need something approximately like an appeal to God. I'm willing to accept such appeals, but others are very clearly not, and neither you nor I have any means by which to compel such acceptance.
And it just so happens that "faithful interpretation" consistently results in judgements that match their own perceptions of what is just and good, and sometimes no more than what is expedient. Any contradictions between these judgements and the text itself are easily resolved by words words words. I'm given to understand that "emanations" and "penumbras" are sometimes involved.
In the past, certainly. In the present, not really, no. In the future, not at all, I should think. Common knowledge and path dependency trump all other factors. It is certainly true that understanding the Constitution is necessary to understand how we got to where we are now, and the short version is that when it was written people really believed in it. But to understand where we are going, one needs to understand that this belief has largely died, and within a generation at most will be entirely extinct.
Supreme Court decisions favoring Blue Tribe observably have vastly greater impact than decisions favoring Red Tribe. Decisions favoring Red Tribe have been quite explicitly defied by lower courts, and the Supreme Court has then quite explicitly allowed such defiance to stand. I have no problem explaining such behavior: the Court realizes that its power derives from social consensus, not formal law, and recognizes that the consensus is against it and that further attempts to enforce the law will cost it more than it can afford. But if you believe the Constitution is really where their power springs forth, I'd be interested in your alternate explanation of such behavior. The Supreme Court sided with Dick Heller, yet he still can't have his gun. Why is that?
And given that I observe that decisions favoring my tribe are routinely nullified by Blues wherever they are stronger, why should I support upholding decisions favoring blues where we Reds are stronger? What value is secured by doing so?
I don't think I can offer a response better than that of Lysander Spooner:
The value of the Constitution came when it acted as a hard limit on the scope and scale of political conflict. People understood it to put many tools of power off the table for most practical purposes, removing them from the normal push and pull of the political contest. When we vote, the Constitution means that we're voting on policy, not on our basic political rights. If we lose, we suffer the other side's policies for a few years, but our rights are inviolate.
Only, they aren't, and anyone who believes otherwise at this point is quite foolish indeed. Progressives and their Living Constitution ideology mean that all bets are off, and indeed we have seen abuses and usurpations committed and upheld that would have been unimaginable as little as ten years ago.
"They wouldn't do that...." Yes, they would, for any value of "that" that one cares to specify. Americans, Blue or Red, are human, and "that" is what humans reliably do. Presidential candidates have campaigned on the idea of taxing religions they don't like, and openly laughed at the idea of constitutional limits on their ambitions. The theoretical grounding is solid, and the underlying logic is simply correct. Where your "norms" are supposed to fit into this picture I really cannot say.
Turn back to your favorite histories, and contemplate the fact that for all our technological sophistication, nothing about our core nature as humans has ever really changed. Humans will inevitably human. We create systems to control and channel our nature, but what our hands make, they can unmake as well. The Constitution arose from a specific culture, and it worked due to a specific set of cultural norms and assumptions. That culture changed, the norms and assumptions no longer apply, and so the Constitution is dead. To the extent that common knowledge of its death has not proliferated, it serves mainly to fool people into making sacrifices that will not be reciprocated by those who caught on a little quicker.
I don't have much to add, been reading you for a while, but just want to say that you have a fascinating blend of what I think is cynicism and naivete. You are aware of power law and how politics aren't real, just kayfabe thrown over the squabbling of groups in the game of power, but you also believe that, in your words, the hunger for justice and the desire to rebel against the intolerable is a part of human nature.
I find this fascinating. I don't believe the latter at all; in the words of greater men than I, all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
I think cooperation is possible at scale, because societies that can coordinate meanness to other societies generally tend to do better than those who can't. They just need, I don't know, some kind of mutually acceptable target. Nothing unites people like a common enemy, especially if the enemy is existential.
The perception of naivete comes, I think, from a gap in priors. Part of that is that I'm a Christian, so I am committed to a belief in objective morality and ultimate justice. Another part of it is that I am quite convinced that human systems are unavoidably fallible. There are no stable dystopias, nor stable utopias, no thousand year Reichs, no iron laws of history grinding out some inevitable sociological outcome. Everything we make ends, usually sooner than later, and sooner still when other humans are incentivized to hasten that end's arrival.
This seems like a reasonable axiom. Would you mind examining it in a bit more detail, though? Specifically, the term "while evils are sufferable": is the sufferability of evils a universal constant, or does it change over time? Will all men in in all places and all times accept one specific evil and reject another specific evil, or do we observe variance in their tolerance over time? And if we observe variance, what causes this variance?
Certainly. But when we observe past societies, we see that the capacity for coherent meanness ebbs and flows. The state long united divides, and the state long divided unites, no?
I should think that simple history would demonstrate that "sufferability" is not, at least in absolute terms, a constant. We can see this by comparing the conditions animating different revolts over time: the peasants in Wat Tyler's rebellion lived in manifestly different conditions than the frontiersmen who rose in the Whisky Rebellion, even though both uprisings were putatively triggered by taxes that were perceived to be too high, and the decisions of local officials which were perceived to be abusive. We can also see it by comparing the circumstances of protesting/revolting groups and comparing them to other groups similarly situated in time and place who did not engage in such protest/revolt. Thus we can see that, for example, there were several serious slave revolts in the U.S. during the first decade of the 19th century, then again in the 1830s, but otherwise seem to have been very rare, even though those same revolts often resulted in the passage of increasingly strict laws circumscribing what limited freedoms slaves had.
A hard question, but one the best explanations I've seen is de Tocqueville's - revolutions and revolts happen not when people are maximally oppressed, but when things are getting better sufficient for them to develop expectations that then go unmet, and when repressive forces are weak and/or internally conflicted.
@SteveKirk as well, the conversation may be relevant to your interests.
So there's two variables we could propose here: how bad things are perceived to be, and the expected benefit of rebellion. An example of the first would be things like the common pattern of famine or other natural disaster driving a population to rebellion out of sheer desperation, and the second is the examples Tocqueville is pointing to, what we might call rebellions of ambition.
To these, I would suggest as a further variable the nature of the technology available to the rebels and their rulers. Looking at the BLM movement culminating in the Floyd riots, I think smartphones and social media are far more fundamental to how things shook out than how bad things were perceived to be and what benefits were expected. To speak a bit more precisely, it seems to me that innate effects of smartphone and social media technology were the dispositive factor in peoples' perceptions of how bad things were, and what benefits rebellion could deliver.
From this, one might argue that technology itself is a major variable in the rebellion equation. Through enabling communication, technology helps us form consensus on how bad things are, and through augmenting and adding to human capabilities, it has a huge impact on the expected benefit both in terms of the fight and in terms of the plausible prosperity victory might bring. On the other hand, there's the fact that it tends to distribute itself fairly evenly between rulers and ruled, at least in the ways that matter in terms of rebellion. You can't have a functional society where the rulers are running on microchips and the ruled are restricted to cuneiform tablets; the rulers need the ruled to do all the stuff, so they need them to work as efficiently as possible, so it's massively in their interest to share the wealth, so there's generally not huge tech differentials to foment massive instability. Still, what I think I see in the historical record is that major technological innovations do in fact seriously alter the rebellion equation, often permanently. Would you argue otherwise?
...At the risk of becoming a bit elliptical, there's two intuition pumps I can recommend on this subject.
The first one is found on page 22 of this rulebook for an old Live-action roleplaying game. left column, bottom of the page, starting with the word "guidelines:". Assume for the sake of argument that the descriptions that follow were reasonable approximations of physical reality, how would you expect the rebellion calculation to change over time? And let's assume we're talking about the trend described regarding technology as a whole, in the most general sense possible, discounting entirely the specific subject mentioned in this instance.
The second can be gained by inference from Nick Bostrom's essay The Vulnerable World Hypothesis. Bostrom, being a rationalist and an academic, comes at the question squarely from the perspective of existential risk, and the perspective of the establishment. He's seeking to advise our rulers about which policies they should implement. But if we approach from the perspective of citizens facing merely human tyranny, and if we ignore the specific technology his argument is built around and rather look at technology itself, in its broadest sense, what inferences would you draw from his argument?
I agree that technology - particularly information technology - plays an important role in setting the rebellion equation. In particular, technology plays a big part in setting the amount of revolutionary energy bouncing around a society. However, I wouldn't go so far to say that it's entirely, or even mostly dispositive. In the language of my original question to you, another variable is the strength of the cork keeping that rebellion energy in the metaphorical bottle.
To expand on this, I think that the factors playing into that equation have to include, at a minimum:
I'm pretty sure that each of these factors can be manipulated semi-independently, and that each of them has a significant impact on the likelihood and character of rebellion. Clearly, advances in techological progress of a society do not monotonically increase the likelihood or seriousness of rebellions; there are clear population-level trends in the ethnic, religious, and regional character of contemporary violence that put paid to that theory.
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Or you can just be a textualist about meaning. Sentences make assertions, commands, etc. Words have ordinary denotations, at least within a given language and context. You can throw that together with some grammar and get a more-or-less well-defined meaning to what it's saying. I don't think my writing this only contains any meaning from social consensus; if you all died halfway through my writing this, it'd still have meaning.
I said "pretty often". I did not say always. Further, if they are erring in their judgment, even just trying, or feeling pressured to make a "good enough" argument will help to constrain.
That said, yeah, the things you list tend to be bad, and were deliberately trying to stretch things.
Don't help it. It's useful.
It's not just path-dependency, as it continues to be used as a reference, and is treated as the supreme law of the land, however poorly. If we collectively, openly, decided tomorrow that it doesn't matter you'd see large changes.
Anyway, I don't think it'll be dead. Conservatives not infrequently turn to it to back up their preferred policies in guns or speech, so there's at least some motive to keep it around, even just in the domain of "let's bash my enemies".
In the recent past. Wasn't true of Lochner, though. (Not that *Lochner was right). In any case, the left kept winning because they'd built up enough institutional power, both in the presidency and in the court system. The right is not currently at that state. That's why it does worse. But what. Do you really think that Blue entities will become more moderate when you tell whatever portion of them who currently have principles that they don't have to care about those pesky things any more?
It'd be more useful, if the right got the level of power that would be needed to effectually ignore the constitution, to bring force to bear to ensure that it's actually followed.
We control SCOTUS now, for the first time in nearly a century. Give it time; the pendulum will swing as bad precedent after bad precedent falls and in 50 years the blues come asking you that same question. Feel free to aid in overturning those precedents, if given the opportunity. But treat it with sufficient seriousness, so that it sticks, instead of giving them an out as soon as your side has power.
If there's one thing the conservative movement's actually managed to do institutionally, it's the federalist society. Don't throw that out.
Yeah, this quote is wrong. It's better to view it as a headwind, maybe—it can be resisted and defeated, but that takes effort, and less is done than without it's presence.
So, sure, we've gotten such a government, but it was slower in coming and still, somehow, smaller and more constrained than it would be did the Constitution not exist.
Sure, it's bad, but imagine how much worse off we'd be without it.
Yes, this is what it's trying to do. Yes, this isn't really what happens, often. But the commitment to constitution means we are at least having to pretend to be trying, which puts us in a better state than if no one cared.
In every trickling force making it easier to follow the status quo. In the respect many people have for things like "rule of law," and so they yield.
I guess I see it as having more weight even with the blues than you do. At least, in things without political valence, like the existence of the 4th amendment, is a very good thing. Don't get rid of that. But even in matters with political valence, they do listen sometimes.
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