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>"Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted."

I feel like the author is looking at using amendments as a way to implement legislation that is permanent. Our Federal constitution is fairly concise, whereas some State constitutions are so easy and readily amendable that legislation gets codified in almost every session [1]. The challenge with doing this is that the constitution itself converges into just another body of law.

[1] https://en.wikipedia.org/wiki/Constitution_of_Alabama

Edit: Instead of "permanent", "decisively" would be more appropriate. A constitution that can easily be amended can just as easily be un-amended. A response to this comment said "way to settle national controversies" which seems far more fitting than what I originally wrote.

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It's another way in which the article doesn't cohere, because it seems clear that Lepore sees amendments as in part a way to settle national controversies (like birthright citizenship or the right to bear arms). But an amendable Constitution doesn't settle anything, as you point out.

What it really does is sap political power from the Supreme Court, which is a reasonable goal for someone like Lepore to have right now.

Congress passing laws saps power from the Supreme Court, and is easier than Amending the Constitution.

The Supreme Court can then strike down those laws via judicial review, a power not enumerated in the constitution.

> a power not enumerated in the constitution.

But at least with two hundred years of general acceptance, so clearly there was something to it.

So, two hundred years of general acceptance (well, aside from that civil war thing where vastly differing fundamental interpretations of how the country can be governed were tested by the tried and true debating tactic of 'how many boys can we send over the trenches') is iron-clad.

But say, 80 years (FDR's expansion of executive power, which reactionaries in the courts are currently dismantling) is not?

Hardly anyone alive remembers it in any other way by this point, and everyone involved in setting that state of affairs has been dead and buried for a generation. And yet...

It's also strange how people seem to be fine to cherrypick a superset of (constitution + a bunch of other two-centuries old political babble), but exclude mountains of conflicting (two centuries-old political babble). It's almost as if the desired outcome is pre-determined, and we're just looking for fig leaves to justify it.

The idea of judicial review as unconstitutional is a fringe view not worth taking seriously. It was established by the framers during the time of the framers. It was a norm in law in the systems that preceded the Constitution, both in the colonies and in the post-revolutionary governments. It's mentioned in the Federalist Papers. When you're arguing with Publius, you're in crank territory.

I'm not arguing with Publius, I'm saying it would be preferable if it were explicitly stated -- same as e.g. a right to privacy or a less ambiguous 2nd amendment.

As for what the framers thought, Wikipedia has some choice quotes, including from Thomas Jefferson: https://en.wikipedia.org/wiki/Judicial_review_in_the_United_...

Our Federal constitution is fairly concise

Concise to the point of vacuous. It says practically nothing. It describes only the barest outlines of government, and effectively all of the actual implementation has been a matter of legislation, judicial decisions, and tradition. Individual words are scrutinized as if they will somehow be unambiguous if we stare at them long enough, or bring in enough cherry-picked outside context.

The section on the courts is especially hilariously short. It basically says "We should have one". Everything after that -- included the vaunted ability of the Supreme Court to "interpret the constitution", is a matter of them deciding that it was something they were going to do and everybody else going along with it.

I don't think this is true. For instance, compare US defamation law to UK defamation law. The distinctions, which are large, are entirely because of the structure of our constitution. Or look at the rules of evidence in Europe, where you don't necessarily have a right to avoid self-incrimination, or to exclude evidence gained unlawfully.

All distinctions which were created by amendments

IMO we should probably differentiate between the BOR and amendments which came later

> IMO we should probably differentiate between the BOR and amendments which came later

Of the 27 amendments that have been ratified, the most recent was one of the twelve submitted as the Bill of Rights, so there are literally none that have come later. Sixteen have come in between (one from the BOR was never passed.)

Also, the most relevant amendment to the issues upthread, for most purposes in US law (since things like defamation law and most of the cases where the evidence differences matter are state, not federal) is the 14th, which is not part of the BOR.

Silly nitpicks don't change the fact the first 10 amendments were passed in 1791.

Universal suffrage amendments came later and we like those too.

> It says practically nothing.

Is that not the whole point? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This basic fact eludes the intelligentsia who all assume that federal power is The Way Things Are (or Should Be). They assume it's the default position, when in fact the Framers intended it to be a bare-bones fallback for only basic things like the national defense.

They found a nice workaround with federal taxation though. There's a lot of instances where the states technically have the power to pass different laws than what's federally blessed. However, they'll lose federal funding if they do. And the majority of the time, that's just not a good trade-off.

So the federal government is essentially taxing the state's citizens, then giving some amount of it back to the states in exchange for rowing the boat in the right direction. States that increase their own taxes to compensate for refusal of federal funds would become noncompetitive to other states who don't.

That's because the SCOTUS is inherently Federal, and so is biased toward Federal power.

The biggest strike against states rights in recent memory was the removal of the SALT deduction, one of the strongest protectors of state power. Now states with higher tax burdens are much less competitive, because the citizens of that state don’t benefit nearly as much for what they pay.

The SALT deduction was a massive thumb in the eye to those of us that didnt get it. Why should local tax burden have anything to do with federal taxes? It was just a handout at the end of the day.

Without it, we have a race to the bottom with social services and infrastructure. A state with better infrastructure cannot be tax-competitive with another state that simply sucks on the federal government’s teat for all its needs.

The biggest handout of all is small states getting two senators despite having 1/50th the population. SALT deductions are nothing in comparison, you could always redirect federal money to make sure red states are net beneficiaries of federal money… and whaddya know, even with the SALT deduction they were.

> another state that simply sucks on the federal government’s teat

It's antithetical to the federal nature of the US that the overwhelming majority of tax dollars are paid to the federal government and not to state and local governments. The federal government's share of taxation should be limited to support its constitutional mission, and more should remain at the state and local level to achieve state and local missions, including things like social services and infrastructure.

That way, some states may choose to have an expanded role of government with high levels of social services and infrastructure spending, some may choose the opposite, and none are left sucking on the federal teat -- the milk from which, may I remind you, are collected from people who live in every state, not just the ones with "better infrastructure".

In the end government money is just people's money taken by taxation. When you let the federal government take most of it, you allow it to browbeat the states into doing whatever the federal government wants, conveniently escaping the limitations that the Constitution placed on it.

Okay, I see you and I are coming at this from very, very different philosophical viewpoints. I do not care what the founders intended, I don’t live in 1786. I am sympathetic to Elie Mystal’s view from the book Allow Me To Retort towards the Constitution.

To summarize:

“Our Constitution is not good. It is a document designed to create a society of enduring white male dominance, hastily edited in the margins to allow for what basic political rights white men could be convinced to share. The Constitution is an imperfect work that urgently and consistently needs to be modified and reimagined to make good on its unrealized promises of justice and equality for all. And yet you rarely see liberals make the point that the Constitution is actually trash. Conservatives are out here acting like the Constitution was etched by divine flame upon stone tablets, when in reality it was scrawled out over a sweaty summer by people making deals with actual monsters who were trying to protect their rights to rape the humans they held in bondage.”

Excerpt From Allow Me to Retort Elie Mystal https://books.apple.com/us/book/allow-me-to-retort/id1549926... This material may be protected by copyright.

The economy turns out to be a pretty big deal, and Commerce Clause aside, states by design have little leverage over it: their borders being open, capital can always just head next door. Small federal government is basically equivalent to right-libertarian economic policy. In an alternate universe you might see liberals content to build welfare states at state level, but in this one it's not really an option.

The framers were well before the Industrial Revolution; if they intended a right-libertarian bias, the economy they wanted unchecked was a smaller and tamer beast than this one. But anyway, they did give us the Commerce Clause.

>The framers were well before the Industrial Revolution

They were well before radio, TV, internet, trains, automobiles, airplanes, nuclear power, and many other things that do not strictly respect state lines. "Leave most decisions to the states" made a lot of sense in 1789 but we live in a different world now.

I don’t really buy this. Somehow Europe manages pretty well with much smaller and more granular country level decision making units.

The EU famously makes a lot of policy!

Only barely more than half of the European countries are in EU, and 20 years ago, less than a third was.

Not compared to what democrats want the US federal government to do. EU countries have their own gun laws, separate healthcare, retirement, and unemployment systems, separate housing and labor laws, etc. Separate laws on abortion, same sex marriage, and other social issues.

This is weird, because you're crediting sovereign states for having their "own" national health care, retirement, unemployment, and housing systems, and in the wildest dreams of the Democratic party we wouldn't have a national system for all of these things.

It makes sense if you sort of skim over the idea that Germany, Sweden, and Spain are just "states" in a federation. But obviously, they are not.

@debtinflation was making a pragmatic argument: that modernity renders these granular state lines obsolete. My point is that the EU manages to keep chugging with all these little sovereign states of 5-10 million people managing their own healthcare and retirement systems

Maybe a US state is something legally different than an EU country, maybe not. I would say the two weren’t intended to be different, and whatever trends have produced such a difference were a mistake. Either way, that doesn’t address the practicality question.

Look at the specific examples I provided. European countries closely coordinate their regulation of radio spectrum, air traffic control, nuclear power, and pollution through the EC even if individual countries have separate national regulators on paper.

Sure. Obviously the US does stuff. But that’s very limited compared to what happens (and people want to happen) at the federal level US.

We do have to acknowledge that the Commerce Clause has been twisted to federally regulate things that are probably outside what the framers intended. In Wickard v. Filburn, the Supreme Court gave the federal government authority to fine a farmer for growing wheat to feed animals on his own farm! Neither interstate nor commerce involved. Or Gonzales v. Raich, or any number of other cases.

The Bill of Rights is particularly brilliant in its conciseness.

A lawyer once said that "show me a contract that's one page, and I won't be able to break it. Show me one 20 pages long, and I'll break it."

Yet somehow it still gets broken.

So, by your standard, the Bill of Rights can’t be “broken” by a lawyer, that is, they can’t get a court to apply it in something other than the intended manner. But virtually every significant phrase in the Bill of Rights has been applied in multiple different ways by different courts over the years, so clearly lawyers have had no trouble breaking it.

> so clearly lawyers have had no trouble breaking it.

You are missing the point. The point is comparing it to a hypothetical constitution that is 20 pages long, instead of 1 page long.

So, the 20 page long constitution, is probably easier to break, despite you misleading focus, on the irrelevant point, of the exact way the statement was phrased.

The BoR has been under continuous and relentless assault for well over two centuries. It is battered and bloodied, but has held up surprisingly well.

The recent abortion ruling disagrees with you. Same with the Patriot Act.

> The recent abortion ruling disagrees with you.

How?

> The recent abortion ruling disagrees with you.

While it is in many ways the main provision that gives meaningful impact to rights both in and beyond the BOR (though the 13th Amendment competes with it on that front, since if people can be treated as property instead of people, they have no rights) by applying them to the main locus of government authority, the states, which the BOR itself neglected to do, the 14th Amendment, which was at issue in Dobbs, is not part of the Bill of Rights.

So Dobbs doesn’t illustrate an assault on the Bill of Rights so much as its irrelevancy in the absence of subsequent amendments.

Yep. It’s like software in that sense. Show me a concise program, and I may be able To find some bugs. Show me a complicated behemoth, and I guarantee it.

The founders understood the nature of power, and thus the importance of decentralization and diversity.

This lawyer must not have been aware of the marvelous legal doctrines of mental gymnastics and motivated reasoning that often get applied to such phrases as "persons and effects" or "shall not be infringed". And let us not forget the definition tricks that get played with words like "search" and "speech".

edit: Sarcasm should be obvious. Point is if enough key parties want to ignore the law it gets ignored and upheld.

Oh, I'm aware of that. I have a bone to pick with a lot of the SC rulings.

But also consider that nobody has yet been put in jail for harshly criticizing the President. And you can still buy a gun.

It may appear that way, especially if someone doesn't make it their life's work. But although concise, it is rich in meaning.

You call out Article III, for example, so I'll focus on that. It doesn't say "we should have a Supreme Court and other courts Congress may establish." It says the judicial power of the United States shall be vested in them, and that judges shall be appointed. It isn't magisterial or clerical power. It clearly establishes the United States as a common law system. That's further reinforced by the use of the term jurisdiction — literally the power to say what the law is. It's clear that any and all courts established by Congress are "inferior" to the Supreme Court, which is a significant protection of judicial independence. It's also clear that Congress can't reduce their pay as retribution - ditto. And that's just the first section.

It's a much richer document than your previous comment gives it credit for.

Your entire argument falls under when you take into consideration that the very judicial power that's "vested" to the Supreme Court in its jurisdiction is solely delegated to Judges that Congress appoints.

Congress should not get to seat its own checks and balances, and it doesn't particularly matter if Congress is only allowed to establish and ordain inferior courts to that of the Supreme Court, if they already effectively establish and ordain the Supreme Court's delegations - and thereby its power.

It never grants them the ability to nullify laws via judicial review. That is a power they invented themselves.

Yes, it does. I think I was pretty clear about that. Help me understand where you're confused?

Is it that you don't see the linkage between the text of Article III and Marbury's famous line, "it is emphatically the province and duty of the judicial department to say what the law is"? Because jurisdictio literally means "to say what the law is"

You are doing this weird thing I see on this web site at times when someones takes a court case they like and accepts whatever the judge states carte blanche. No further reading required.

The fact judicial review is not in the constitution is not controversial.

Here's what Administrative Office of the U.S. Courts web sight says:

"The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803)."

https://www.uscourts.gov/about-federal-courts/educational-re...

I'm not just someone "on this website," I'm a Harvard-educated lawyer in the federal government with over a decade of experience, including litigating Constitutional issues in federal district court. I assure you, there have been years and years of "further reading" and it was emphatically required.

It's a trendy take to say that judicial review isn't in the Constitution, and that may be superficially true, but it ignores two important facts that contradict that take:

(1) Article III's explicit grant of "appellate jurisdiction ... as to law"

(2) The Framers' own words in the Judiciary Act of 1789, which explicitly anticipates cases "draw[ing] in question the validity of a treaty or statute of, or an authority exercised under the United States, [where] the decision is against their validity" and reaffirms that such decisions may be "reversed or affirmed in the Supreme Court of the United States."

It is very clear what "appellate jurisdiction ... as to law" in "cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made" means. And for anyone who has any lingering doubts, just look to how the Framers implemented it in the very first Judiciary Act, less than seven months after the Constitution went into effect.

I lived in Alabama for quite some time. For anyone not reading the wikipedia article (and tbh, I haven't either, but am quite familiar with it's constitution) it was expressly written to consolidate power in the "planter" rich, white, ruling class and take power from both Blacks and lower SES whites, with a bit of a sop to the more independent farmers of the North Alabama hills (remember this was a time of far from universal suffrage) The result was that most cities and counties don't have a lot of direct control, and any little thing has go through the amendment process: e.g. this year question 8 on the ballot refers to Shelby county's regulation of sewer rates

It's a shitshow through and through

I know Florida has some "law-like" amendments. At least a couple recent ones, specifically the legalization of medical marijuana and minimum wage increases, came about because it's a way for the populace to directly vote on and implement laws that state representatives are refusing to pass or even discuss.

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