Every creature from the New Deal is probably unconstitutional.
Additional context on that threat of court packing is that the Supreme Court was already invalidating and gutting the New Deal! Its such an important story to me because my grade school history books all upheld the New Deal as this monumental and amazing thing.
From what I can tell, 75% of it (or 75% of the programs it created) was declared unconstitutional, and everything else just hasn't been challenged yet!
And of the things that were challenged and declared constitutional, it was under the threat of court packing! Now, 3-5 generations later, the Supreme Court just can't imagine how society functions by ruling accurately to begin with! I'm pretty interested in any court unwinding this incongruency.
I think implicit in your comment is that the New Deal must not actually be amazing because it turns out that it's likely unconstitutional but... how does that logically follow? It's not like the Constitution was handed down from the heavens as a flawless document.
It may be that the New Deal does contain many unconstitutional provisions, but also that that same legislature was in fact a net benefit for Americans.
There’s a process for that. The authority to override or change the constitution is not given to a single government branch but to the states. We’ve had an amendment as late as the 1990s, so it isn’t as of the constitution is immutable.
The authority of each government branch is explicitly enumerated. I’d rather them behave according to the contract they are beholden to than decide they have whatever authority they wish. That’s no longer a constitutional republic.
I’m not saying that a constitutional republic is the end all, be all. I’m just saying there is a process for getting things done and it is supposed to checked by the constitution and the other federal branches. That can be changed by amendment or revolution, but should not be changed by the whim of politicians.
Net positive and constitutional are mutually exclusive concepts. That I do agree, and I agree that my earlier statement doesn't seem to give room for that level of nuance.
It just so happens that all my causes and grudges are from creatures of the New Deal, and I'm not in a position to bring them before the courts yet. Imagine my excitement when I realized how flimsy that era's legislative flurry really was.
Yes it s a great system because foundational change requires a super majority of consensus across multiple political lines. Not just a mob showing up with pitch forks demanding the flavor of the week.
That only works if people don't unreasonably deify the system. You have to admit the constitution is deeply flawed in order to be willing to modify it, and, well, if popular opinion is that it is deeply flawed, you won't amend it, you'll just have judges rule without interpreting it strictly.
Politically speaking, it's a terribly flawed document, because it can't change it without a civil war or functionally one party rule, and its written in imprecise language that opens it up to more judicial interpretation than is necessary or constructive.
I mean, of those 6, one (the 22nd) was passed as a response to the functionally one-party rule by FDR and new-deal dems in the 30s and 40s. Two (the 24th and 26th) were voting rights amendments that were functionally extensions of the 15th amendment, you know...one of the post-civil war amendments. And one (the 25th) was passed after the president was assassinated. One (the 27th) is a very popular idea with bipartisan support, and it still took 200 years to ratify.
I'd also reiterate that social factors have changed, we're currently in the longest break between amendments being passed since reconstruction. None have been passed in my lifetime, and the same group that says we should interpret the constitution extremely strictly is also the one that says that it's perfect as is and we should respect it and the founders great insights. That's not a recipe for changing it.
> Ideally we'd see less of "judges rule without interpreting it strictly,"
That's, just, like, your opinion, man. By which I mean that originalism isn't the only school of thought in regards to the constitution. By the time you've succeeded in convincing people that it is okay to change the constitution, you'll have also convinced them that interpreting it less strictly. Saying it's a living document but not a living constitution is an impossibly hard needle to thread.
And that's doubly true when "should the document be changed" itself becomes a political question, which it has. Something like 20-30% of the US will vote for people on a platform of "I will oppose any constitutional amendment". That's enough to block ratification!
18 times (Articles 3-12 of the proposed Bill of Rights were ratified simultaneously and became Amendments 1-10; article 2 took 201 more years, and Article 1, though it was once one state away from ratification, has still not been ratified and is 27 states short.)
It's not rule by the minority. It's that the majority needs to get wider agreement on their changes if they are to be implemented. The minority cannot force anything to happen. They can only prevent sweeping changes from passing with the slimmest of margins.
For every liberal complaining about the filibuster or Senate debate rules, would you have been fine with total Republican control of all levels of Federal government from 2016-2018? They had a wider majority in both the House and the Senate than the Democrats do right now.
Slowing the pace of massive change is a good thing. It gives time for ideas to be fleshed out. It gives time for ideas to be experimented with at a smaller scale. It gives time for people to see the results or consequences of actions.
Yes the systematic unequal representation in (in descending order of inherent distortion, though abuse of state-level control of apportionment in the latter case means it's not always descending order of actual distortion) the Senate, Electoral College, and House all favor essentially the same geopgraphy and thus the same political faction so long as ideology isn't geographically homogeneous. This favors stable minority rule.
If you look at the data, industrial production starts bouncing back when the worst provisions of the New Deal get struck down by the courts. It was very much self-defeating, the only part that helped was devaluing the dollar wrt. the main foreign currencies.
Additional context on that threat of court packing is that the Supreme Court was already invalidating and gutting the New Deal! Its such an important story to me because my grade school history books all upheld the New Deal as this monumental and amazing thing.
From what I can tell, 75% of it (or 75% of the programs it created) was declared unconstitutional, and everything else just hasn't been challenged yet!
And of the things that were challenged and declared constitutional, it was under the threat of court packing! Now, 3-5 generations later, the Supreme Court just can't imagine how society functions by ruling accurately to begin with! I'm pretty interested in any court unwinding this incongruency.