Hacker News Reader

Comment by czstar | Hacker News Reader

To have a properly functioning society there should be some level of legal uniformity on major topics. Soon two people will be allowed to marry in one state and potentially face arrest should they travel to a state where that act is illegal. Will the fact that two men (or women) are married to each other be probable cause for arrest for violating sodomy laws?

The Court should be in the business of preserving or expanding rights and not in the business of diminishing them.

View on HN

Why should the court be in the business of expanding rights? I think you should go read and understand what the three branches of the federal government should do.

I think people have gotten used to the supreme Court that pushes a semi-majority opinion of certain topics across the country. We've seen this with abortion, same-sex marriage, and many other topics. The problem is this overrides the Democratic process.

While some people will complain that the federal government is really slow at passing laws, I see that as a good thing. And makes it so that an opinion must be popular around the entire country before it can really become law.

Do you want a supreme Court passing what are effectively new laws if that court had a majority of fundamentalist Christians on it that weren't originalist, but rather pushing their agenda? Then you would get the supreme Court saying there is no right to gay marriage. We could also get the supreme Court to rule that a baby in utero is considered a human life and aborting it would be murder.

Pushing the supreme Court to be only a body that rules on the laws that are available to it and not reading new language into then, I think will make everybody happy in the long run.

The statements in the U.S. Constitution collectively have quite a few logical consequences. The 5 axioms of Euclidean Geometry lead to a vast array of theorems (logical consequences). The Court’s job is to navigate the logical consequences of the statements in the U.S. Constitution.

The Constitution says nothing about a Department of the Air Force. Should it be legal to have a Department of the Air Force? The Constitution mentions “War Department”. It says nothing about a Department of Defense. Should that be legal? Well, the courts would throw out any challenge to the constitutionality of the Department of the Air Force because of the logical deductions of the statements in the Constitution.

Repeat the process for all statements in the Constitution and after 200 years you get a vast collection of legal opinions and judgments.

Respectfully, the court is a small group of unelected old people. If I do not like the way they think, there is mostly nothing I can do about it.

The court should not be in the business of preserving or expanding rights - it should be in the business of enforcing laws our legislatures create. I would state 'in my opinion' but this was also the prevailing opinion for most of our history (including our founding).

To change this will require constitutional changes as its just not how our country was set up.

The primary role of the court is to preserve rights. It’s job is to make sure laws aren’t enforced that violate established rights. It’s job is to tell governments at all levels that certain laws passed are illegal because they violate rights. Imagine a city saying that burning a Koran is illegal and a crime punishable by death. I very much hope the Court would step in and say that law is illegal. I think you don’t understand the historical role the court has played. It does more than preserve or expand rights but that is one of its primary functions.

EDIT: Let me be more precise. The purpose of the Court is to clarify rights. It’s job is to decide what exactly is meant by “equal protection”, “freedom of speech”, etc.

I feel like we are talking past each other and that may have been my fault.

I think we agree that the courts job is to enforce laws, and the constitution, that define our rights (or the reach of government).

I think we agree that it would be improper for a court to just make up a right - All people with blond hair can skip lines at dairy queen.

I think the point we are (perhaps?) disagreeing on is what makes a right. I think the historic context of it is the constitution and government laws. I think (perhaps wrongly, I don't know whats in your mind) state that the courts can define new rights.

Like I said - its a hot button topic, and I think I will probably need to remove myself from it soon, but I see this as the court previously creating a right where none exists and asking the legislatures to do their job. I hope that helps explain the thoughts from my side.

Cheers man.

EDIT: I understand your position. It makes sense. There is nothing objectionable with it. Below is what I see where the essence of the divergence of views on this topic come from. Have a great day!

Three highly intelligent and very knowledgeable members of the Court wrote an opinion on why Roe should not be overturned. Their eloquence and reasoning are far greater than mine. You should read what they wrote to see the legal basis of their position. It was not some right made out of thin air as in your Dairy Queen example.

Now 6 members of the court who are equally intelligent and knowledgeable wrote an opinion on why Roe should be overturned. Their eloquence and reasoning are far greater than mine. I read parts of their decision. I disagree with their reasoning. Herein lies the problem.

Human language lacks mathematical precision (I’m a mathematician and not a lawyer) and so we end up in a situation where equally smart, knowledgeable people have completely different conclusions about the same set of statements. This in itself is a cause of chaos.

In what I’ve written to you I have avoided saying things like, “there is no legal basis for overturning Roe”. Clearly there is a legal basis for doing so. Clearly there is a legal basis for not doing so. What I concentrate on are the consequences for this decision. I think the unintended consequences will be dire. Personally I think the Constitution needs to be rewritten. What worked in 1800 isn’t necessarily workable in 2022 in a much larger country with a much larger population.

I think you are right that we may not agree with each other but I now understand your position and appreciate you explaining it.

Its funny - we probably agree with each other on the items you think we disagree.

Seriously though, I do suggest reaching out to your local state representatives if you have never done it. I've done it multiple times and have always been impressed by the discussion, their opinions, and actions from it. This is just general advice disconnected from the article / topic. Hopefully you have a similar experience.

Been a good conversation man.

Reply on news.ycombinator.com