shminux comments on Praising the Constitution - Less Wrong

-6 Post author: dragonfiremalus 27 June 2015 04:55PM

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Comment author: shminux 27 June 2015 05:30:10PM *  0 points [-]

whether or not the US supreme court ruling was, in fact, constitutional

Isn't that true by definition? SCOTUS is the final authority on what is constitutional, no?

If the Constitution had specifically supported the legality of slavery, then that would have shown it was time to burn it and try again.

It did, until a certain amendment was passed.

To me that is the important question. Not whether or not it is Constitutional, but whether or not it is right.

"right" is a normative term, and so the answer depends on what ethics you prefer. If you fix, say, on utilitarianism, it is not immediately obvious that the positive utility of gay people gaining more rights outweighs the negative utility gay rights cause the religious social conservatives.

What is your ethical model and why that one and not some other?

Comment author: Vaniver 27 June 2015 05:47:32PM *  5 points [-]

Isn't that true by definition? SCOTUS is the final authority on what is constitutional, no?

It seems cleanest to see Constitutional as a two-place word, and to point out that the government's written policy is to accept CurrentSCOTUS!Constitutional as the binding word. (The SCOTUS can overrule a previous version of itself, for example, which means it's not quite final.) It's popular to describe SCOTUS decisions as "morally wrong," but more relevantly, it seems that they could make decisions that are "logically wrong" and thus aren't Constitutional in some other important sense.

There's also commentary here and there about what the Constitutional duties of the non-SCOTUS arms of the government are; the President does have, as part of his oath of office, defending the Constitution, which presumably could require him to stop an insane SCOTUS out to wreck everything, but mostly people discuss in context of presidents signing laws they believe to be unconstitutional.

Comment author: Epictetus 27 June 2015 06:00:16PM 1 point [-]

the President does have, as part of his oath of office, defending the Constitution, which presumably could require him to stop an insane SCOTUS out to wreck everything

That came up in one of the Federalist papers:

The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

--Federalst No. 78

Andrew Jackson infamously ignored a Supreme Court ruling in Worcester v. Georgia.

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