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> Actual 1st Amendment rights like "Freedom of Association" were severely curtailed by Civil Rights legislation

The 1st Amendment does not protect some vague right to "freedom of association". It protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". Which is exactly the right that the protesters of the 1960s whose actions helped to get the Civil Rights laws passed were exercising. To say that those same Civil Rights laws "severely curtailed" those same rights is ridiculous. They did no such thing.

> The 1st Amendment does not protect some vague right to "freedom of association".

Finally, we agree!

https://en.wikipedia.org/wiki/Freedom_of_association

That Wikipedia article actually references a Supreme Court decision that says the 1st Amendment does protect freedom of association because it is an essential part of freedom of speech. I haven't read the opinion in that case, though, so I don't know what "freedom of association" actually meant in the context of that case.

I personally would say the 9th and 10th Amendments are more to the point, since they talk about rights not specifically mentioned.

> That hasn't been true since the 1960s when the bulk of our Civil Rights legislation was passed.

Civil Rights legislation does not override the Constitution or the Bill of Rights.

I think you have a very idiosyncratic (and wrong) view of how law in the US works.

> I think you have a very idiosyncratic (and wrong) view of how law in the US works.

And yet today, the Supreme Court literally did the thing you think it should not do. Doesn't that give you at least a moment's pause that maybe the law no longer operates the way you think it does in the US?

> the Supreme Court literally did the thing you think it should not do.

If you mean I think the Supreme Court enacted a policy, which I have said (in another subthread) should be done by Congress, not the Court, yes, that's true.

But the Court itself says it is not enacting policy. It claims to simply "say what the law is", based on the power granted to it by the Constitution plus a long history of prior Court decisions, starting with Marbury v. Madison (from which the phrase I just used is taken). I think the Court's claim that it is not enacting policy is wrong, but that's just my personal opinion. The law is that enacting policies is the job of Congress, not the Court, and the Court claims to be following this law and leaving legislation to Congress. Certainly the Court is not claiming that the Civil Rights law of 1964 overrides the Constitution, or gives the Court some sort of power to enact policies that is not granted by the Constitution. Nor is anyone else except you, so far as I can see.

sigh

To use a coding analogy, it's as if you're telling me what a piece of code does by reading the comments. I'm reading the actual code, and telling you that the comments next to it are out-of-date—they no longer describe the code. To prove that the code does what I say it does, I'm running it (c.f. today's Supreme Court decision) and showing you the results. Yet you are not convinced.

That the Supreme Court creates policy today that Congress cannot is obvious to everyone on both the left and right. The left is overjoyed at the increase in protections for disadvantaged people, the right dismayed that the left isn't using the "right" process to get those protections. The documentation (Constitution) says the Supreme Court shouldn't be making these policies…but when we run the code, like today, that's what happens. The code doesn't match the comments.

It would be great if the comments matched the code, but that's not reality today—and hasn't been for at least the last 70 years. Many (most?) people are okay with this apparent contradiction, so long as good as being done, but it appears to bother you (and most people on the right).

I 100% agree that in a perfect world, the Constitution should be updated if the courts are going to make these kinds of policies, but I also think that's extremely unlikely since Congress has zero interest in doing so, and Civil Rights legislation is so broad that there's no need anyway: the courts can just say, like they did today, that it's actually Congress who made this policy (even though everyone knows Congress did no such thing). Since apparently muttering the correct words is sufficient to satisfy people on the right, despite all evidence to the contrary, why change things?

> it's as if you're telling me what a piece of code does by reading the comments.

Hm, interesting analogy. I see your point, but I think I would put it a bit differently. See below.

> apparently muttering the correct words is sufficient to satisfy people on the right, why change things?

Where did I say I was satisfied? (Assuming for the sake of argument that I am "on the right", which I actually don't think is true, but that's an argument for another time.) I'm not satisfied. I think that achieving a short-term policy goal, even a good one, by means not allowed by the plain language of the Constitution is bad long-term policy. The fact that sophistry is used to make it appear that the means of achieving the short-term policy goal are in fact in accordance with the Constitution does not make the means actually correct.

In other words, in my view, what the Court has done here is not upholding the rule of law. Saying that "well, the law is whatever the Court says it is" does not make it true. If, as you say, everyone knows quite well that the Civil Rights Act of 1964 did not actually outlaw discrimination because of sexual orientation or transgender, then the Court saying that it actually did is not the rule of law. It's just an arbitrary exercise of power. Arbitrary exercises of power do not change the law. They just mean the government is operating outside the law.

To frame this using your coding analogy, we don't have comments getting out of sync with code, we have two different pieces of code getting out of sync with each other. The code the government is running that it labels "law" is not the same as the code that citizens are running that tells them what the law actually is and whether or not the government is actually upholding it. The code the citizens are running might be based on their reading of "comments" like the Constitution, but that just underscores the fact that those "comments" aren't really just comments--they have actual effects in the world, like giving citizens a basis for making their own judgments about what the law is that they are supposed to be following. If the government gets out of sync with that, that's a problem.

> To frame this using your coding analogy, we don't have comments getting out of sync with code, we have two different pieces of code getting out of sync with each other.

I get what you're saying and agree, actually. That said, it's pretty clear to me that whatever code that you're thinking of isn't running anywhere but in the minds of (mostly White) voters. It's almost completely absent from all forms of government except, perhaps, local governments in rural areas. Trump occasionally makes gestures in that direction but takes no action, as far as I can tell.

The people in power everywhere are running the piece of code that produced today's Supreme Court decision, and are overjoyed with the results.

A more interesting question is, why do we have two separate codes that are out of sync? And what should we do about it (if anything)? But that's too big of a topic for the HN comment section.

Thanks for the back and forth, I appreciate it. :)

> whatever code that you're thinking of isn't running anywhere but in the minds of (mostly White) voters

This might well be true; if it is, it's a sad commentary on our body politic that so many people have lost touch with what the rule of law is supposed to mean. Civilizations where that has happened in the past have not ended well.

> Thanks for the back and forth, I appreciate it. :)

Likewise! :-)

Respectfully, this is the hugest flaw with small c conservative thought, it's hyperfocused on the individual and ignores any larger social context or wellbeing to the detriment of a nation, state, etc

I think your "small c conservative" thought is actually more like libertarianism, but otherwise I agree.

(When I think of actual "small c conservatives", someone like G. K. Chesterton is what immediately comes to mind…)

I might have to revisit my perspective, thanks for this!

You can turn that around just as easily. As an Asian, I’m always a bit unsettled by the degree to which liberals are willing to absolutely set the social fabric on fire to accommodate individuals. Like, a school in small town Iowa where everyone is Christian can’t use their public institutions that they pay for to perform one of the most fundamental functions of human societies: socializing children in the community’s religion. I see why it’s that way through the view of western individualism, but I can’t say your average person in Bangladesh would see that as rooted in a consideration for the “larger social context.”

> the degree to which liberals are willing to absolutely set the social fabric on fire to accommodate individuals. Like, a school in small town Iowa where everyone is Christian can’t use their public institutions that they pay for to perform one of the most fundamental functions of human societies: socializing children in the community’s religion.

I don't think liberals are actually setting the social fabric on fire to enable individualism over, in the case of your example, socializing children in the community's religion. I think liberals simply want to socialize the children in their own ideology instead of that of their parents. That's one of the things compulsory public schooling is for, in the words of the very people who put that system in place.

> set the social fabric on fire

That's an interesting way of framing necessary change.

I'm not interested in diminishing the capacity of people to celebrate their beliefs, but yes indeed, we separate church and state because it's in the best interest of society in general. I guess that's very western of me to say, but I'm more than glad to defend it in the context of many past examples of religious institutions abusing public goods in order to discriminate.