After he got the amendment ratified, there's a strong argument that the paper probably should have been given a higher grade. But had he been given that higher grade in the first place, he probably wouldn't have gone through the effort to ratify the amendment.
You could argue that the paper did deserve the initial C grade, because that's what it took to get him angry enough to go and get the amendment ratified.
I.e. capriciously, arbitrarily, and often based on a random person's mood at some random time?
> Don't worry about people stealing an idea. If it's original, you will have to ram it down their throats.
The paper was originally graded by a TA who gave the "C" grade. Watson appealed the grade to the professor. The professor reviewed it and upheld the "C" grade, stating that he had not sufficiently convinced her that the amendment was still alive.
https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_th...
I hardly doubt being given an A+ and being encouraged and told that he had quite an idea there would have led him to abandon the enterprise.
Too often exceptional students perform despite poor teaching practices, and then we look to the poor teaching practices as the root of the success.
Why? Partly because the Supreme Court has been very willing to discover hidden rights within the existing amendments, decreasing the need for states to go through the very arduous process of getting a new amendment over the finish line.
That might seem like a fine way to handle things ... if the court is discovering constitutional rights that are in line with your views.
But this workaround puts a LOT of power into the hands of the nine justices who control the judicial branch. Amending the constitution was purposefully designed to be harder to do than passing normal legislation, which requires a majority of Congress plus the president's signature. But in many pivotal cases over the past five decades, just five justices decided the outcome.
Obviously once they start doing that there's no real way to control what they are able to modify, but the only real way to fix it would be to completely scrap the current constitution and start from scratch (and be much more explicit about everything including rights and constitutional review). However,the constitution is now seen as something like infallible scripture in the US, plus it's impossible to get everyone to agree on anything, so that would be highly unlikely in the near future even though other to countries have been able to do it.
Let's take that as true, 'cause I agree
> so the supreme court essentially has no choice but to make stuff up.
No. The supreme court should have continued to observe the constitution and told Congress that they needed to propose some amendments. If there was a need for them, they'd happen, just like they have in the past.
One, that’s not quite true. Sometimes the Constitution uses broad language. For example, the Commerce Clause is worded expansively. It’s probably been pushed a bit beyond the text, but the bigger impact is from vastly more activity in the country involving “interstate commerce.” Regardless, that’s well within the scope of interpretation and judgment.
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. The “reasonable expectation of privacy” formulation of the 4th amendment. The “wall of separation” of church and state. The country wouldn’t fall into the ocean without these things.
The administrative state is probably the most unconstitutional thing that’s simultaneously necessary. Specifically, regulatory agencies in the executive branch that combine legislative and judicial functions. (E.g. having the ability to promulgate rules and then adjudicate violations.) But one can imagine workarounds. E.g. executive agencies propose rules which Congress enacts. (Proposing laws is actually a function of the executive branch.)
Or the constitution can be amended.
While we’re at it, promote the non-slaver founders symbolically and strike the slavers from the currency. Rebrand as Free States of America.
It seems far more likely to me that the arrow of causality goes the other way here, and that the actual difficulty of passing amendments has just gone up in proportion to the number of states admitted and the progressively worsening lack of proportionality of American legislative bodies making them more and more out of tune with what people actually want in their government.
Certainly it's not inherently "good" for law to come from the bench in itself, but it seems likely enough that the US would have fallen apart long ago without it happening.
Some of the founders were concerned that by listing out some rights in the Bill of Rights, they would be treated as an exhaustive list and used to deny other rights that were not explicitly listed. So Madison proposed the Ninth Amendment as a way of indicating that it's not an exhaustive list. We see this approach in a lot of modern legal contracts, where the phrase "including but not limited to" is used.
But the practical implication of this amendment is that it gives the judicial branch nearly carte blanche power to say what additional, unenumerated rights the Constitution does or doesn't protect. And once the court makes a pronouncement that an unenumerated right exists, the only way to overrule it is to ... you guessed it ... ratify an amendment!
But that creates a very strange setup. SCOTUS "discovers" these unenumerated rights because it's too difficult to get an amendment ratified -- but the sole check on their authority is ratifying an amendment to veto their ruling.
Activist wing thinks it needs to be interpreted within the current framework of judicial, social and political viewpoints while originalism wants it to be interpreted in the way it was originally written. It's hard to say one way or another.
Activits would claim Brown vs Board created the march to racial equality, while originalist would say passing of Civil Rights Law is the appropriate way. It's a debate that is not going away anytime soon.
Originalists want it to be interpreted in the way it was intended. They go to great lengths to discover the original intent behind the law as it was understood at the time of writing.
https://en.m.wikipedia.org/wiki/Originalism
I’m honestly amazed that any other position but originalism is considered rationally tenable. Laws are written with an intended meaning and understanding. The idea that the intent and meaning of law should change with time is ridiculous. The law should be changed if people come to find it disagreeable, not reinterpreted. Judicial activists seek to subvert the will of the legislature, and in that way they are criminals.
This is not even considering that a lot of their known ideas were absolutely terrible.
There's a reason Congress tends to enjoy a low-teens approval rating on aggregate (all Americans continue to vote the same legislators back into office year after year after year).
The first problem is those who are all about states rights tend to be selective in applying that standard. Congress passed the Fugitive Slave Act in 1850 that required free states to return slaves to return those slaves to their owners. The Supreme Court ruled (in 1859) that Wisconsin couldn't overrule a Federal court or statute. States rights anyone?
Second, if you haven't already look into the Redeemer movement of the post-Civil War era and how the Supreme Court in the name of a literal interpretation of the Constitution [1]. After the Colfax massacre of 77 or so African Americans:
> Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.
The point here isn't that textualism isn't bad per se. The point is that it itself is an interpretation of the Constitution.
You also see the effects of this as language itself changes. Two examples spring to mind:
1. The Establishment clause of the First Amendment. "Establishment" here has a very specific historical meaning stemming from the Anglican Church being the established religion of the United Kingdom. "Established" here meant the Church was responsible for what are otherwise actions under civil authority in the United States. Example: registering marriages. In England, you'd have Roman Catholic who would have two ceremonies. One in their own religion and another "official" ceremony in an Anglican Church so the marriage was official.
2. We essentially have a national firearms free-for-all all stemming from a pretty liberal interpretation of a "well-regulated Militia" from the Second Amendment.
[1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption...
Admittedly, I'm not sure what a supreme court does if they can't do that, but it's kinda funny that they bootstrapped it themselves.
Textualists and originalists seem to be Civil Code fans in Common Law clothing.
Did you know the US Constitution and Bill of Rights was massively altered in 2008 without a two-thirds majority of Congress nor any majority of the States legislatures?[1] In fact, this is so, and it was done pretty much by one man ironically abandoning his own career-long ideology of strict constitutional interpretations with an argument entirely based on, figuratively speaking, bullshit. We know what the Founders intended because we have the minutes of the Constitutional Congress in which the Founders debated whether to include a right of self-defense in the 2nd, and this was intentionally left out. "Because most Americans believe something," is not a rational nor strictly legal means of altering the US Constitution, and, in fact, the notion floated then was not true. (Prior to 2008 most Americans did not believe the 2nd included an implicit right of self-defense... only the gunnutters pushed that garbage. Most Americans actually knew the truth, that the 2nd concerns militias.) Regardless of this mistake (or lie), this man somehow single-handedly changed the 2nd from a self-less right to protect one's neighbor from tyranny, to a selfish right to protect your television. This... after the (continuing) suspension of habeas corpus and the 5th earlier in that decade.
Changing the Constitution (what's left of it) is easy.[2]
[1] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...
[2] I may be cynical, but I'm also pretty angry about it, and it doesn't help that no one seems to care or notice that our beloved Constitution has been screwed with.
Only gun nutters believe in the right to self defense?
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?
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 [1]?
In general, as with every other Supreme Court case, I would recommend going to the primary source and reading the majority opinion and dissents [2], since they go over the various arguments in meticulous detail, and judge for yourself.
[1] https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?refe...
https://www.archives.gov/founding-docs/constitution-transcri...
https://www.statesman.com/news/20170314/herman-35-years-late...
Just think about that for a second: Someone had to push the state legislature to abolish slavery in 1995. Just sickening
> Back in 2000, Alabama became the last state in the country to overturn its ban on interracial marriage. And despite more than three decades having passed since the Supreme Court ruled such laws unconstitutional (rendering such bans effectively moot), more than 40 percent of Alabamians still voted against overturning it.
https://www.washingtonpost.com/news/the-fix/wp/2015/02/09/al...
There’s an exception in the 13th for convicts, but the results are very different from chattel slavery.
