Kindle Notes & Highlights
Read between
March 11 - June 19, 2024
When it was written, in Philadelphia in 1787, it did not contain a bill of rights. The people who drafted the Constitution did not think one was necessary. They thought that the structure of government was enough to protect individuals’ rights. The Bill of Rights was added later.
We could go on and on with examples of how the government is both bad and good.
Government is more like a buffet. There are appealing items for everyone, as well as things to avoid. When we see the government’s menu items as good, we are happy and go about our business. We don’t worry much about it or what it’s doing, except to the extent that we cast our votes for people who will maintain the status quo. When the government is bad, we get upset. We make some noise and cast votes for people who will change the status quo.
They didn’t anticipate the explosion of big-data technology and how it would forever morph the very concept of individual privacy.
"They" = Founders
Yet, perhaps most ironically, the framers did anticipate that deep ideological factions could rip the country apart and leave space for the kind of autocracy that they denounced in the form of the British monarchy. As a result, they wrote the Constitution to avoid a government that could devolve into a purely “tribal” political system under which certain points of view become more important than fostering the interests of the public as a whole. Today, we find ourselves mired in just that kind of political death spiral. What on earth is going on?
it becomes strangely evident that government does not really exist as we may assume it does. It is inextricably enmeshed with the private sector in ways the pages of this book cannot fully account for.
Does it matter that government is not an easily quantifiable entity? The answer is yes.
Let’s be clear about one thing, for starters: the Constitution is not a bulwark. By this I mean it does not erect an impenetrable wall around the citizens of the United States to defend them against tyranny and abuses. It is porous. It needs shoring up from time to time.
The Constitution works in much the same way. It is a relatively terse document that leaves much of its necessary terms and meaning unwritten. The Constitution is held up by conventions and norms that developed over centuries of American history—the
Picks up right where how Democracies Die left off
Today, the Constitution is at risk of becoming a sort of anti-jaywalking law—something that can be ignored or violated with no consequences. Its vitality is eroding under our noses, but few people realize it. A big reason for this is that most people do not really know what the Constitution says and does.
First. Having a cop on the block matters. It is important to grasp something about human nature that drives legal systems: a law is meaningful only to the extent that it is enforceable.
Second. There is a big difference between policy and politics.
But political has another meaning that has eclipsed the other in recent months and years: to politicize an issue is to associate it with an ideological bias or viewpoint that may be fiercely guarded by certain clusters of people. When an issue is politicized, ideological bias drives policy, regardless of the merits and the facts. Take
For policymakers and judges interpreting the Constitution, as well, what matters most is how they arrived at the conclusion: Did they attempt to reconcile competing arguments? Did they account for all the facts? And did they consider the policy implications for each party or constituent group involved? These steps make up a “best practice” for solving any hard problem.
Policy vs politics
Fourth. “Strict reading of the Constitution” is a myth. I want to unravel the idea that some judges “strictly read” the Constitution and others do not.
Does it matter that presidents today have TV, the Internet, and a much larger government to run? What about the fact that the federal government in 2019 serves upward of 325 million people versus the 3.9 million in 1787? And that we live in a global economy that the framers could not have envisioned?
The problem with the strict-reading-of-the-Constitution mantra is that words often have different meanings, either standing alone or in the context of other words. Consider the Fourth Amendment’s familiar ban on unreasonable searches and seizures. We can probably all agree that unreasonable is a highly subjective term.
Likewise, the word search can have different meanings. In 1791, when the Fourth Amendment was ratified, a search likely referred to men in uniform banging down front doors and rifling through drawers and closets without a warrant. But did the Constitution’s framers really consider whether taking thermal images of a person’s home to find marijuana growing inside constituted a search?4 What about tracking a Jeep with a GPS device during a drug investigation?5 Of course not.
The bald reality is that words have meanings that are not always clear. The meaning of other foundational documents, like the Bible, the Torah, and the Koran, have been debated for centuries. Why would the Constitution be any different?
So when I hear pundits blithely pile conservatives in a happy plain-meaning camp and liberals in a comparatively suspect progressive-reading camp under the guise of honest constitutional theory, I cringe. Good judging—like good governance—requires transparency, reasoned decision-making, and sound judgment. To expect judges not to make judgments is illogical. To pretend that those cloaked with the strict-reading mantra are somehow not judging—but merely translating English into English—is folly.
Georgy Willfred again
when we think about what it means to be American, many values spring to mind. They might include concepts like honor, humility, transparency, openness, ambition, hard work, innovation, integrity, opportunity, progress, freedom, efficiency, enterprise, achievement, equality, tradition, respect, justice, fairness, diversity, education, security, leisure, the rule of law, and accountability.
It thus may come as a surprise that the values we consider quintessentially American are not self-executing;
The same holds true for our political leaders: not everything we expect of them is required by law. The Constitution is the boss of all laws in the United States, but much of its strength is based on social norms and values that many of us wrongly assume rise to the level of rights of citizenship. But as mentioned before, the Constitution is, in fact, fragile—and porous. Many of these values must come from somewhere else—and also be enforced by society—if they are to continue to characterize the American way of life. There is no law establishing them, in other words, and no Constitution cop
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How Democracies Die
If no court has considered whether an Internet search is a Fourth Amendment violation, then there is no law banning such a search—the court will make that law based on the facts of your particular case. This is so even though there is a law banning unreasonable searches and seizures in general.
TooLs and weapons
The Constitution is just 230 years old—a wee babe in the broad arc of human history. It could falter. The drafters of the Constitution knew this. They were deeply influenced by the French philosopher Montesquieu.
Funny, I dont recall Georgy mentioning him once. Will verify
If the Constitution’s system of checks and balances is allowed to lapse or weaken, another governmental structure will emerge to fill in the gap. And rest assured: it will not be superior to the one that has operated to protect individual liberties and freedoms since 1787, albeit imperfectly. It is human nature to amass power.
But mostly, the Constitution’s structure is being tested by the absence of accountability.
You see, it doesn’t matter which band of cops is directing bridge traffic on a particular day. If the bridge’s structure is neglected to the point of destruction, everyone will go down with it—regardless of political party or ideology.
The chapter divides constitutional law into two axes and suggests that the first thing you do in thinking about a constitutional law question is to decide which camp it falls into: a rights-based constitutional law issue or a structural constitutional law issue.
Prior to the enactment of that law, which was passed in reaction to police tolerance of hateful activities in the South by the Ku Klux Klan, people could not sue in court to obtain relief for state and local officials’ violations of their constitutional rights. There was, in other words, no such cause of action.
Whoa, thats wild
Ultimately, he will lose his power grab not because the American people are smart enough to elect only good people but because the system will (or should) inevitably force unethical, power-hungry people out of power one way or another. The structural Constitution assumes that human beings will continue to act like human beings—meaning some will seek more power regardless of the external costs.
Note for a moment that something is conspicuously missing from the vesting clauses’ language: a written definition of what each power means. The Constitution does not define the terms legislative, executive, or judicial. This is where the notion of careful reading comes in.
Strange as it sounds, reading the Constitution is a lot like reading poetry. Why? Because poetry requires careful focus on individual words as well as analyses of competing meanings.
On one hand, the poem endorses an approach to life that is like that of the disinterested snow man:
Man I'm not smart enough for this
The context in which a reader approaches poetry will deeply affect which reading she adopts as the best one.
Where you sit effects where yyou stand
The bottom line is that there is no single, correct, enduring answer to the precise meaning of this particular text.
As for Congress, among its many expressed powers (such as the power to establish post offices and the power to declare war), Article I gives it “clean up” authority that, by virtue of the powers it implies, is grander than the legislature’s delineated powers combined.
With the stock market crash of the 1920s, President Franklin Delano Roosevelt decided that the economy was massively underregulated. The idea was that if the government played a greater role in managing the economy by passing rules of the road for banks and other players in financial markets, future fiscal catastrophes and consequential mass suffering could be avoided. Aided by a compliant Congress, an alphabet soup of federal agencies was born in the 1930s.6 Federal agencies have thus been around for nearly a century, and they are here to stay—which presents a problem for someone who wants to
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If the vesting clauses mean what they say, agencies that make laws (Congress’s job) and adjudicate disputes (judges’ job) are unconstitutional from the point of view of the Constitution’s architectural blueprint.
George Will
The ability of the people to elect and replace representatives via valid electoral processes is a key reason why Americans treat our government as legitimate. It is arguably why many of us go along with a routine traffic stop without much ado over the authority of police officers to interrupt our daily lives.
As Madison explained in Federalist No. 37, “The genius of republican liberty seems to demand on one side, not only that all power should be derived from the People, but that those intrusted with it should be kept in dependence on the People.”
Similarly, if the people ignore representatives’ failure to uphold the Constitution—or even the norms underlying the Constitution—just this once, future officeholders will understand that they can get away with violating the same rules and norms in the future. This theoretical use-it-or-lose-it concept is immeasurably important. If you don’t use the rights and rules that the Constitution provides, you will lose them.
How Democracies Die
If you take nothing else away from this book, I hope you take away an appreciation for how we cannot take the Constitution for granted. It works only insofar as we enforce it—that is, we throw our elected leaders out of office if they ignore the terms of their representation—and that we do this consistently, from generation to generation, so that our children are not left with a replacement that is far inferior.
The privilege of the Writ of Habeas Corpus shall not be suspended,* unless when in Cases of Rebellion or Invasion the public Safety may require it.
Lincoln
One irony about separation-of-powers questions, therefore, is that they don’t address governing by nongovernment workers. As corporate interests become more and more powerful, a fair question to ask is whether this talk about the powers of the branches is, as a practical matter, beside the point.
Yes, love getting to this topic. What George is largely whiffing on
As a matter of the separation of powers, can the president act only if Congress gives him the specific authority first? In other words, does Congress have to pass a law—to legislate—before the president can execute or enforce it? Or is there something about law execution that allows the president to create his own rules from time to time?
By the same token, if the president is doing something we don’t like, we want the courts and Congress to check, check, check. But if we like what he’s up to, we want separation—we want the other branches to leave the guy alone and let him do his job. There are lots of justifications implicit in the Constitution’s text for one route or another, but none is definitive.
For now, the long and short of the meaning of legislative under the vesting clause of Article I is that the president makes laws too.
Important, wish this as fleshed out a bit moe
The first theory, reflected in the majority opinion by Justice Hugo Black, is that the president can act only if there is clear constitutional or statutory authority.
The second theory is that the president can do what he wants so long as it doesn’t actually step on the toes of another branch. Is taking over a steel mill creating a new law? If not—if what the president was doing wasn’t really lawmaking—then Congress has no right to complain.
