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.
Poor grades are supposed to be for poor work. What you're talking about is intentionally giving good students bad grades for good work just to piss them off, hoping that something good comes out of pissing them off. That's not what grades are for.
Apropos HN, I'm reminded of a quote recounted in Portraits in Silicon (Robert Slater, 1987) and attributed to Howard H. Aiken, original designer of the Harvard Mark I:
> Don't worry about people stealing an idea. If it's original, you will have to ram it down their throats.
Maybe the paper did deserve a C when it was handed in. Maybe it was poorly written, too short, too long, irrelevant to the topic at hand or just about anything else.
There have been only two amendments to the U.S. Constitution over the past 50+ years (one of which is the subject of this story).
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.
If interpreted strictly, the constitution is really not suitable for operating a modern government (e.g. if you interpret the list of powers given to the federal government narrowly) so the supreme court essentially has no choice but to make stuff up.
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.
> 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.
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.
You're ignoring the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Essentially, the bill of rights was not intended to be exhaustive, nor could it be.
I don't think this notion is really supported by the historical record. The US supreme court established the principle of judicial review (which is nowhere in the text of the constitution but is the basis for most of what the court does) barely over a decade after the first supreme court was seated. 218 years ago.
This is an age old debate between judicial activism and judicial originalism. Most issues seem to stem from interpretation of the text.
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.
Discover hidden rights is quite the euphemism for legislating from the bench. But credit is due for the correct answer, which is returning the balance back to the legislative branch.
On some level I'm sympathetic to the argument of the textualists (vs the "living document" philosophy. As you say there's a process for amending the Constitution. But there are a number of problems with this idea.
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.
The Supreme Court has been making shit up since 1857 at the latest. They are likely to continue to make shit up for several years after the Union dissolves.
That's how Common Law has always worked, no? Judges make law. I would guess the rate of Amendments is inversely proportional to the stability of the country (static borders, no more domestic wars, increasing body of case law/precedent).
Textualists and originalists seem to be Civil Code fans in Common Law clothing.
This is why the Constitution is called a living document. It's malleable enough in its interpretation to remain relevant even after 2 centuries. Take away that and the constitution would no longer work for our modern society.
> There have been only two amendments to the U.S. Constitution over the past 50+ years
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]
[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.
> In 1995, he realized Mississippi had never ratified the 13th Amendment, which abolished slavery. So he pushed that state's Legislature to do it — and it worked.
Just think about that for a second: Someone had to push the state legislature to abolish slavery in 1995. Just sickening
At least good thing they simply ratified it, instead of putting it to a vote. That could have become embarrassing, as Alabama found:
> 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.
No, they ratified the amendment which had already abolished slavery, a purely symbolic act. The ratification was unanimous so it's not like there was any opposition to it in 1995.
Slavery was never really abolished, it's still allowed as punishment for a crime. The bias of police and the criminal justice system against people of certain races takes on a new meaning in this light.
ohazi|4 years ago
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.
hvdijk|4 years ago
wahern|4 years ago
> Don't worry about people stealing an idea. If it's original, you will have to ram it down their throats.
https://books.google.com/books?id=aWTtMyYmKhUC&pg=PA88
paxys|4 years ago
jszymborski|4 years ago
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.
croes|4 years ago
JetAlone|4 years ago
jawns|4 years ago
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.
resoluteteeth|4 years ago
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.
stormbrew|4 years ago
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.
rcollyer|4 years ago
pvg|4 years ago
wanderingmind|4 years ago
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.
dimitrios1|4 years ago
cletus|4 years ago
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...
jessaustin|4 years ago
thereare5lights|4 years ago
dundarious|4 years ago
Textualists and originalists seem to be Civil Code fans in Common Law clothing.
Salgat|4 years ago
Maursault|4 years ago
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.
TrispusAttucks|4 years ago
https://www.archives.gov/founding-docs/constitution-transcri...
teorema|4 years ago
https://www.statesman.com/news/20170314/herman-35-years-late...
dcolkitt|4 years ago
mynameishere|4 years ago
[deleted]
victor106|4 years ago
Just think about that for a second: Someone had to push the state legislature to abolish slavery in 1995. Just sickening
smnrchrds|4 years ago
> 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...
zimbu668|4 years ago
minikites|4 years ago