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naraburns  nihil supernum  1yr ago (text post)   31958 thread views

Culture War Roundup for the week of December 5, 2022

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Well that's because the state by state lawmaking is also a branch on this tree. The default for nations is that it isn't sub-division by sub-division for major laws, so that the Constitution and federalization itself is the "attack" against the normal way of operating where major laws are decided centrally.

Whether federalism is an attack or not is really only tangentially related to the whole topic of abortion at best, that's more to do with a larger meta-discussion that centres around what system of government to adopt.

All politics have to build on a system of deeper underlying rules that guides how things are done. You can discuss what these rules should be, but once they're in place you have to abide by them when you're trying to make policy changes, and in the case of the U.S. the system in place happens to be a federal one. If we allowed for the political decision-making systems that undergird everything to be questioned as an attack in that manner, the second anyone doesn't like the processes involved because it prevents them from achieving their goal they can just call it an attack on some basis (an attack on the prior natural state of tribal anarchy, perhaps?) and use this as justification to circumvent it.

Additionally, Roe v. Wade can't claim to be "defending against" the system of federalism as a whole - rather, it was simply carving out an exception for abortion using a very flimsy appeal to the already existing system to do so, and it can't really be argued to be part of that larger meta-discussion as a result. It wasn't trying to modify the existing system and make it into something else, it was falsely claiming the existing system protected something it did not.

Even if the U.S. wasn't a federal system, the argument can still be made that Roe is an attack. As mentioned many times before in this thread, they would still have to answer for the method through which they struck down abortion restrictions, and this problem remains regardless of whether the US is unitary or federalist.

The Supreme Court stepped outside of its ambit by performing mental gymnastics to pretend the Constitution protected something it did not, and used that as justification to restrict lawmaking. Whether the Supreme Court was preventing state governments or the federal/central government from putting in abortion bans is irrelevant to the fact it was judicial activism. That's enough to call it a "Pearl Harbour-like legal coup", I think, and enough to qualify it as an illegitimate attack.

EDIT: added more

That's enough to call it a "Pearl Harbour-like legal coup", I think, and enough to qualify it as an illegitimate attack.

Again though if you think the Constitution was illegitimate because it was never democratically created in the first place then that is irrelevant. We're not talking legal justifications but moral ones here remember. At that point judicial activism is a good thing because it is defending against the over reach of a small elite group of first movers who codified their beliefs into a consitutional document, that nobody today got a say on.

Setting aside the specific examples, this is my point, there is always an earlier "attack" on whatever values you hold. You can always find an earlier branch where your opponents were the ones who fixed the system that you are defending against, where they threw the first punch so to speak.

It's an illegitimate attack to you because you think the Constitution is legitimate. If someone does not, then it is an entirely legitimate attack to them.

You can't resolve this with historical facts because it is not a factual discussion. It's a values one.

Again though if you think the Constitution was illegitimate because it was never democratically created in the first place then that is irrelevant. We're not talking legal justifications but moral ones here remember. At that point judicial activism is a good thing because it is defending against the over reach of a small elite group of first movers who codified their beliefs into a consitutional document, that nobody today got a say on.

The Constitution wasn't just penned and made law, it was turned over to the states to be ratified. And it is definitely untrue that no one today gets a say on the Constitution, evidenced by the repeated amendments over the years. If something is in the Constitution, that is specifically because people elected via a democratic process have decided it should be there and/or have allowed it to remain. While constitutional amendments are hard to make happen, the Constitution is not a stagnant document that has remained unchanged since its inception.

Furthermore, the very fact that people abide by that system and still utilise it is prima facie evidence of implicit consent to it - nothing actually prevents people from throwing the Constitution away and drafting up a new agreement (like they did with the previous Articles of Confederation) if they generally believe the current method of doing things doesn't work well. So there are some pretty strong reasons to view the Constitution as legitimate.

It's an illegitimate attack to you because you think the Constitution is legitimate. If someone does not, then it is an entirely legitimate attack to them.

You can't resolve this with historical facts because it is not a factual discussion. It's a values one.

The legitimacy of the Constitution has absolutely nothing to do with whether that system it prescribes is in line with any individual person's values.

The Constitution wasn't just penned and made law, it was turned over to the states to be ratified. And it is definitely untrue that no one today gets a say on the Constitution, evidenced by the repeated amendments over the years. If something is in the Constitution, that is specifically because people elected via a democratic process have decided it should be there and/or have allowed it to remain.

And who set the high bar for the amendments to pass and the very process? Legitimacy is derived only by how things are perceived by the populace. There is no other way for it be derived. If enough people believe the 2020 election was illegitimate then it was. There is no objective measure of legitimacy, other than how people feel about it. There is no outside force than can determine if the people see something as legitimate or not.

And who set the high bar for the amendments to pass and the very process? Legitimacy is derived only by how things are perceived by the populace. There is no other way for it be derived. If enough people believe the 2020 election was illegitimate then it was. There is no objective measure of legitimacy, other than how people feel about it. There is no outside force than can determine if the people see something as legitimate or not.

Yes, I essentially agree with this. The legitimacy of the Constitution isn't a fluffy subjective thing that can simply differ from person to person. Legitimacy is a phenomenon which is determined by the beliefs of the society as a whole. And in a scenario where people do see the Constitution as illegitimate, I see nothing preventing them from outright drawing up another agreement. It's happened before and can happen again. The fact that people generally have chosen to remain with that system seems to suggest they see merit in it, no?

They did in part through judicial activism (per your claim) no? They elected politicians who chose judges to override the Constitution in your framing. You can redraw the document parts at a time in how it is practiced. You don't have to do the whole thing in one go or via a textual amendment as long as people accept the legitimacy of your change, however you do it.

The issue preventing that is that not everyone agrees so control goes back and forth.

They did in part through judicial activism (per your claim) no? They elected politicians who chose judges to override the Constitution in your framing.

They did, and then they elected politicians who chose judges to override the judges that overrode the Constitution. By this logic, the Constitution has been upheld and Roe v. Wade is illegitimate.

Of course, there's questions to be raised about how much the decisions of Supreme Court judges actually represent the public (not least because how they are chosen is one level removed from the general public's vote), but if this argument is to be made, surely the most recent decision should take precedence.

Right, because not all the people do consider that method of changing the Constitution to be legitimate. But if they did, changing it that way is just as acceptable as changing it via writing a whole new one or using the amendment process.

If we accept that the Constitution itself is only legitimate if people perceive it to be so, then it must also follow that ANY method of changing it is also legitimate if perceived to be so. Judicial activism, tearing it up, ignoring it, using the built in processes, a referendum, whatever, all that matters is if enough people accept it.

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