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In practice that’s probably true, but they do have a theory of the constitution as a living breathing document that needs to be adapted to the times, and because amendments are short that means lots of penumbras and the like.
The GOP has their own the constitution can mean whatever we want theory - it’s called something like “Common Good Theory”. They haven’t yet nominated a devotee. If they ever did the court really would just be a super legislature.
Though both sides seem to make up things when they really want to. I remember when one day student athletes couldn’t get paid and the next day they had a constitutional right to pay. I never read the opinions but when no law has passed it does mean a lot of it’s just public opinion and reading things how you want to for that opinion. I like cited this case because it was bipartisan.
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As a legal naïf, I'd rather just be able to read a statute's plain language and understand it than have to rely on the deep expertise of those who can sense penumbras. Ideally, any normal person that would like to engage in commerce or speech would be able to do so based on such a naive understanding of the ordinary meaning of laws without needing to consult a penumbra expert, but I suppose such a situation would be quite unprofitable for the legal industry.
This is basically how all legal systems start out, when given a clean slate. As time goes on, case and precedent law eventually become important as other important issues enter the foreground, where a nuanced interpretation of things is needed. Law over the long-run isn’t a such the clean and pristine thing people want it to be, but I think some nations do it better than others. Singapore does this ‘really’ well. The interplay between the judiciary and economy is a huge focus in Ordoliberalism (1, 2).
The legal business landscape and lack of a secure property rights regime, is one of the many things that’s holding back the economic development of Russia for instance. Because informal patronage networks play an enormous role in the Russian socioeconomic system, you never entirely know who it is you’re dealing with and what legal boundaries you’re going to run afoul of. They could benefit hugely from the kind of thing you’re saying, but it comes at the destruction and reset of existing systems. Legal ‘reform’ is always a more difficult task than people think it is.
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You can just look at contemporary political discourse and see why this theory of legal interpretation runs into problems. Rarely do people agree on the "plain meaning" of anything.
Consider the text of the second amendment:
Already, this one sentence presents multiple interpretive issues:
1.) If a "well regulated militia" is no longer necessary to the "security of a free State", does that mean that the amendment is no longer applicable? This could be read as a conditional - "given that a militia is necessary, the right to bear arms shall not be infringed". You could say that that part doesn't really matter, that it's just "flavor text", and the important and permanently binding part is the "...shall not be infringed" part - but then, that seems to call for a general theory of which parts of a text can be ignored as "not really mattering".
2.) What counts as an "infringement" of the "right of the people"? Does that mean that no person can ever be prevented from owning a gun? Maybe. But, "the people" is not the same thing as "any person". It's reasonable to say things like "the people of the United States are free", even though there are individuals in the United States who are imprisoned and unfree. So, maybe we're allowed to restrict the right of certain individuals to own a gun, as long as "the people" as a whole have not had "their" rights infringed. But then that raises the question of where to draw the line. How many individuals is too much? When do we cross the line from "individuals have had their rights infringed" to "the people have had their rights infringed"? 50%?
3.) What counts as an "arm"? Do nuclear weapons count? The phrase "nuclear arms" is relatively commonplace, so it seems like they might. But, I've never seen anyone suggest that the second amendment should prevent the government from restricting access to nuclear weapons.
I would have no problem with someone owning nukes if it was a situation where they could reasonably keep the nukes safely, use the nukes without harming bystanders, and dispose of the nukes safely when they can no longer be used. This is not inherently impossible (consider a company that uses a nuke when mining) but generally is unlikely.
Also, all except very small nukes are not arms you can "bear".
One American citizen in particular has the ability to drop a literal ICBM, on my (or anyone else's) head, at will. ICBMs are absolutely arms he "bears", nuclear or not.
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I've always wondered about the viability of demanding that new laws do something along these lines:
Give answers to pre-emptive hypotheticals. Ah yes, the 2nd Amendment will no longer apply if the "arms" in question are capable of killing >10 people in the span of 1 minute.
Or, this prohibition against speeding above 60 mph or legalizing a requirement for child seats in cars no longer applies if subject to the widespread availability (>50% of active motor vehicles) of self-driving cars (or technological advances of other natures) that have the effect of reducing per kilometer fatality rates to below 50% of the value today.
Think of it as test cases in programming, you provide clear examples and documentation of how your natural language commands ought to be interpreted.
Even if the law seems dead simple and foolproof, never underestimate the universe's ability to generate a better class of fool.
I am also mildly positive on all laws having an automatic expiry date if they're not verified, perhaps graded by the degree of unanimity with which they were passed. I heard this didn't work out in Texas, but I don't think it's in the grave yet, in conjunction with the above.
@naraburns have lawyers considered something like this? Is there a deep and inscrutable (to me, an ignoramus) reason why it's not advocated?
No, the Texas sunset rules are bipartisan consensus and enforced.
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What--sunset provisions? Sure. Congress often passes laws with expiration dates. They're usually laws aimed at funding something-or-other, but the idea of a law that expires is a totally normal one. The badly-misnamed PATRIOT Act is one famous case where big chunks of the law were supposed to go away as the apparent emergency of Islamic terrorism was beaten into submission, but Congress kept renewing various objectionable chunks of that law and I think eventually made many parts permanent (or, as permanent as law ever is).
I think what you're maybe missing, though, is the "separation of powers" doctrine. Congress is supposed to be the legislative branch of the federal government, and also the political branch. American courts of law are supposed to fulfill two basic functions: interpreting the (politically-crafted!) legislation from an objective or "non-political" perspective when disputes arise, and safeguarding individual rights against legislative overreach.
American courts are actually pretty good at fulfilling that first function. It's the second function where stuff gets weird. Personally, I think this is largely a matter of having a Constitution written by natural law theorists, that is still the "final word" on government activity in a nation where almost no one even understands natural law, much less believes it to be true, much less believes it to be divinely appointed. The Supreme Court is thus routinely accused, often with compelling evidence, of just making shit up about what the Constitution supposedly "says" or "implies" or whatever. And these accusations come from both the Right and the Left, but of course since people tend to treat their arguments as soldiers, those accusations rarely get leveled by anyone whose ox isn't being actively gored. This makes the Court a kind of "super legislature," any time it can be persuaded that the Constitution somehow demands yet another thing no one has ever before believed the Constitution to demand.
But maybe your question was referring more to this:
Congress does a lot of this, too, during its various hearings and debates. But due to the "cases and controversies" clause limiting (at least in theory) what questions the judiciary can hear, American courts are generally not able to issue such "advisory opinions." Even so, shenanigans with the cases and controversies clause are also definitely a thing.
It was:
I'm asking why it's not enshrined into the law itself, not just debates surrounding it. From my limited understanding, the judiciary would have no choice but to consider it if was part of the law outright.
Gotcha. I do think the answer is purely political, though. It might be smart to enshrine such a consideration into the law (it might not, too, but it might!). But as a general rule legislatures do not pass laws because it is smart to do so. Legislatures pass laws for all kinds of reasons, but the main one is "because certain people asked for it," where "certain people" may be constituents, or special interest groups, or friends and family, or Hollywood, or...
There are other reasons, of course, but the point is that there are many good ideas we do not adopt simply because no one stands to personally benefit sufficiently that there is what is sometimes called the "political will" to do it. Sometimes lawyers get together and do the meta-legislation of crafting proposals with the ostensible purpose of improving the operation of the legal system. The most famous of these are probably the "uniform code" recommendations crafted by the Uniform Law Commission, but even these often end up being quite political in their development and adoption.
As a purely practical matter, I suppose it might also seem like a waste of time to craft pre-emptive hypotheticals when the point of a lawyer is often to draw distinctions between like cases. Since hypothesis space is infinite and no two cases are ever exactly alike (this is the challenge often posed by reliance on "precedent"), it's not at all clear that crafting pre-emptive hypotheticals would actually help anything.
I certainly share the sense of frustration from good ideas not being implemented because nobody stands to gain.
It seems to like it would at least help:
In the hypothetical world where the 2nd Amendment came with test cases where it would fail, say- "Arms or munitions of any nature capable of killing >10 people in 1 minute", it seems to me like it would end the faffing about on whether AR-15s should be banned (I'm not saying they should be, just that in this case it would be much clearer, even if it lead to arguments of whether an AR-15 can do that).
As long as it sets a clear intent and guidelines to follow, it ought to be a positive change outside degenerate situations like "the rules are made up and nothing matters", and while some naked lawfare approaches that today, we're not quite there yet.
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Something many people
Miss is the militia clause within the original constitution. I think one needs to read that in connection with the second amendment which ends up suggesting a different reading compared to Heller. While I am relatively pro gun, I don’t buy the second amendment arguments favored by people on that side.
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You've never run into the legalize recreational nukes meme? Even Heinlein made a soft argument for private ownership in Moon is a Harsh Mistress, claiming that in practical terms they already are.
I 100% think a fair reading of the amendment would include nukes.
I also think there is likely 99% of populate does not support private ownership of nukes.
IMO a you can’t own nukes amendment would pass fairly easily. Which does raise a question of expediency - can the Supreme Court just ignore it or should they yes you can own nukes and force the legislature to constantly add amendments and edge cases that far (which would lead to a much longer constitition that school kids couldn’t read).
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I think here, what liberals believe differentiates them from the rest of the world is their belief that “groups don’t have rights, only individuals do.” And freedom is a concept that’s home to many different political systems.
In the US, we tend to think of ‘freedom’ as the ability to live our lives governed by our choices we make. Essentially it’s the ability to live a life without coercion from others. That’s not an absolute value, but the by this US definition of “freedom,” I suppose we’re much freer than other societies.
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The Second Amendment is a perfect example, from my perspective, of one where quite a few of the arguments made are obviously dishonest. I don't believe that any sincere person can read the text and believe that it allows the federal government to ban handguns and light infantry weapons. Sure, there are questions that could come up (your point regarding nuclear weapons is good, questions around felon possession, and numerous more that really would require some narrower reading), but I flatly don't believe that attorneys that argue for bans on handguns or light infantry weapons are reading in good faith.
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Right, that ship sailed before the current generation of lawyers had even been born.
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