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posted by on Thursday April 13 2017, @02:03PM   Printer-friendly
from the proven-solutions dept.

The Center for American Progress reports

After Senate Majority Leader Mitch McConnell's (R-KY) decision to prevent a president of the opposite party from nominating anyone to the Supreme Court, it's doubtful that any justice will ever be confirmed again when the presidency is controlled by a different party than the Senate. That means America will lurch back and forth between extended periods with a understaffed Supreme Court, followed by massive shifts in the law as one party fills a backlog of vacancies.

[...] Several states have shown that there is a better way [than what, it appears, will happen at the federal level from now on].

The Missouri plan

As America struggled through the Great Depression, Missouri's courts were a den of partisanship and corruption. As former Chief Justice of Missouri Michael Wolff explains, judges were "selected in elections in which nominees were chosen by political parties under a patronage system." In much of the state, judges were selected by a single machine party leader, "Boss" Tom Pendergast. Throughout Missouri, "judges were plagued by outside political influences, and dockets were congested due to the time the judges spent making political appearances and campaigning."

Frustrated with their politicized judiciary, the people of Missouri passed a ballot initiative replacing the state's corrupt process with a non-partisan coalition--at least for the state's top judges.

When a vacancy arises on the state's supreme court, a seven person commission consisting of "three lawyers elected by the lawyers of The Missouri Bar . . . three citizens selected by the governor, and the chief justice" submits three candidates to fill that vacancy to the state's governor. The governor then has 60 days to choose among those three names. If the governor fails to meet this deadline, the commission selects one of the three.

Finally, after a year of service, the newly appointed judge must survive a retention election, where a majority of the electorate can cast them out of office--though this only happens rarely.

This method of judicial selection, as well as variants upon it, was adopted by many states since its inception in Missouri.


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  • (Score: 2, Informative) by evil_aaronm on Thursday April 13 2017, @04:18PM (23 children)

    by evil_aaronm (5747) on Thursday April 13 2017, @04:18PM (#493468)

    The "literally" argument in nonsense. Just take one aspect - arms, for example. The FF could not have envisioned the firepower we have, nowadays, or will have in the future. If they had an inkling that one individual could wield enough weaponry, by himself, to take out an entire city block, they might have reconsidered the right to bear arms. We can not base our judgements literally, today, on standards that were developed over 200 years ago. Interpretations and adaptations to the current situation are required. Now, I agree that "interpretations" can be taken too far, to the point of nearly creating new laws from the bench. That's not good, either. Ideally, we'd have a bench full of sensible, moderate judges who understood that their rulings had to comport with the spirit of the Constitution as applied to current times.

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  • (Score: 3, Interesting) by tangomargarine on Thursday April 13 2017, @05:20PM (13 children)

    by tangomargarine (667) on Thursday April 13 2017, @05:20PM (#493503)

    How many times do we keep having to explain that "arms" refers to man-portable weapons. We're not talking about right to bear nukes.

    Hell, back around the Revolutionary War "one individual could wield enough weaponry, by himself, to take out an entire city block" (of people). Give him a musket, line up all the people, and give him about a half hour.

    We can not base our judgments literally, today, on standards that were developed over 200 years ago.

    So the bedrock principles our country was founded on are no longer to be taken seriously. Marvelous.

    I'll point out that it took a hell of a long time for people to pay attention to the "created equal" clause, and I'm sure you wouldn't complain about that being taken literally.

    --
    "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
    • (Score: 2) by vux984 on Thursday April 13 2017, @06:28PM (10 children)

      by vux984 (5045) on Thursday April 13 2017, @06:28PM (#493538)

      How many times do we keep having to explain that "arms" refers to man-portable weapons. We're not talking about right to bear nukes.

      So? What happens when we have man-portable nukes?

      Oh wait... we do have those...
      http://www.businessinsider.com/9-facts-about-the-uss-backpack-nukes-2014-2?op=1 [businessinsider.com]

      Hell, back around the Revolutionary War "one individual could wield enough weaponry, by himself, to take out an entire city block" (of people). Give him a musket, line up all the people, and give him about a half hour.

      That requires quite a bit of cooperation from the people being taken out. That's kind of precisely why the comparison fails.

      I'll point out that it took a hell of a long time for people to pay attention to the "created equal" clause, and I'm sure you wouldn't complain about that being taken literally.

      And we're still up shit creek when it comes to realizing that most of the constitution talks about "persons"; yet most American's including much of the law evidently think most of the rights only apply to "citizens"; despite only a very few specific clauses applying to citizens.

      • (Score: 2) by tangomargarine on Thursday April 13 2017, @06:33PM (3 children)

        by tangomargarine (667) on Thursday April 13 2017, @06:33PM (#493543)

        And we're still up shit creek when it comes to realizing that most of the constitution talks about "persons"; yet most American's including much of the law evidently think most of the rights only apply to "citizens"; despite only a very few specific clauses applying to citizens.

        Sounds like you're arguing against yourself here: if we took the Constitution at face value of what it literally said, this wouldn't be a problem.

        --
        "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
        • (Score: 2) by vux984 on Thursday April 13 2017, @06:50PM

          by vux984 (5045) on Thursday April 13 2017, @06:50PM (#493555)

          Sounds like you're arguing against yourself here:

          I'm not 'arguing' a point; I'm simply observing that we (collectively, including the courts) aren't all that consistent in how we've interpreted the constitution, and we never have been. The literalists seem to have some pretty big blind spots too.

        • (Score: 2) by dry on Friday April 14 2017, @05:09AM (1 child)

          by dry (223) on Friday April 14 2017, @05:09AM (#493828) Journal

          Nobody wants to take the Constitution at face value. Everyone wants some speech outlawed and everyone wants some people prevented from owning and bearing arms.
          No one wants to declare that all electronic stuff isn't covered by the bill of rights either. A printer is not a press, a keyboard is not a pen and electronic documents are not papers. A strict reading says that they're not covered as they weren't even thought of.
          No one seems to seriously want to amend the Constitution either. Take the illegal Air Force, no where does the Constitution give the government the right to form the Air Force and passing an amendment to allow it would have been easy, instead the conservatives just mutter about the Constitution allowing for defence without stopping to think that it actively discouraged even a standing Army while encouraging a Navy.

          • (Score: 2) by tangomargarine on Friday April 14 2017, @02:50PM

            by tangomargarine (667) on Friday April 14 2017, @02:50PM (#493997)

            Hey, speak for yourself.

            Everyone wants some speech outlawed

            Not this guy.

            everyone wants some people prevented from owning and bearing arms.

            Well mentally ill, sure. Otherwise not really. Of course the problem is how one defines mental illness.

            No one wants to declare that all electronic stuff isn't covered by the bill of rights either. A printer is not a press, a keyboard is not a pen and electronic documents are not papers.

            That a lot of people seem to believe this disturbs me. I would say those things you listed are equivalent and should be treated the same.

            No one seems to seriously want to amend the Constitution either. Take the illegal Air Force, no where does the Constitution give the government the right to form the Air Force and passing an amendment to allow it would have been easy,

            Heh. Okay, that's fair.

            it actively discouraged even a standing Army while encouraging a Navy.

            Yeah, it's an interesting discussion about how much military thought has changed since then. IIRC even until WWI there wasn't a standing U.S. peace-time military?

            --
            "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
      • (Score: 2) by tangomargarine on Thursday April 13 2017, @06:39PM (5 children)

        by tangomargarine (667) on Thursday April 13 2017, @06:39PM (#493545)

        Oh wait... we do have those...
        " rel="url2html-6455">http://www.businessinsider.com/9-facts-about-the-uss-backpack-nukes-2014-2?op=1

        According to Wikipedia they were taken out of circulation in 1968. So "have" in the sense of "maybe there are some sitting in a secure warehouse somewhere that haven't completely decayed yet."

        --
        "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
        • (Score: 2) by vux984 on Thursday April 13 2017, @06:56PM (4 children)

          by vux984 (5045) on Thursday April 13 2017, @06:56PM (#493560)

          " So "have" in the sense of "maybe there are some sitting in a secure warehouse somewhere that haven't completely decayed yet."

          The point is the technology already exists and is 50 years old. So there is really no reason some prepper can't build one himself right? Or for a private group of citizens to place an order with a weapons supplier. Just because the government isn't actively using them, doesn't mean private citizens can't. I mean, the US military doesn't use LOTS of weapons that a private citizen is welcome to procure...

          • (Score: 2) by tangomargarine on Thursday April 13 2017, @07:00PM (3 children)

            by tangomargarine (667) on Thursday April 13 2017, @07:00PM (#493563)

            So there is really no reason some prepper can't build one himself right? Or for a private group of citizens to place an order with a weapons supplier.

            For a nuke? I'm not going to assume nuclear weapons are things you can easily build in your garage (and not irradiate yourself in the process, and have the thing actually work) or buy from a dude in a 7/11 parking lot at midnight.

            --
            "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
            • (Score: 2) by vux984 on Thursday April 13 2017, @08:24PM (2 children)

              by vux984 (5045) on Thursday April 13 2017, @08:24PM (#493612)

              You are focused on the wrong question; its really not a question of difficulty to do in ones garage.* The point is we have the tecnhology and it qualifies as 'man portable'.

              Do you think individuals should be allowed to procure one? It doesn't really matter for the sake of this discussion HOW they procure it. Whether they build it themselves, or order it from Amazon, or if walmart stocks them is immaterial. If we are entitled to have them under the constitution then presumably some sort of supply chain should be legal.
               

              • (Score: 2) by tangomargarine on Thursday April 13 2017, @09:42PM (1 child)

                by tangomargarine (667) on Thursday April 13 2017, @09:42PM (#493646)

                I suppose the same question would apply if a guy decided to build his own battleship. I'm not familiar with what rules cover private military contractors.

                --
                "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
                • (Score: 2) by vux984 on Friday April 14 2017, @12:08AM

                  by vux984 (5045) on Friday April 14 2017, @12:08AM (#493716)

                  I suppose the same question would apply if a guy decided to build his own battleship.

                  Or a hand grenade. Which is also prohibited.

    • (Score: 3, Informative) by DeathMonkey on Thursday April 13 2017, @08:22PM (1 child)

      by DeathMonkey (1380) on Thursday April 13 2017, @08:22PM (#493611) Journal

      How many times do we keep having to explain that "arms" refers to man-portable weapons.

      That's not the literal definition of "arms" though. You can't advocate a literal interpretation while using a non-literal definition.

      arms
      ärmz/Submit
      noun
      1.
      weapons and ammunition; armaments.
      "they were subjugated by force of arms"
      synonyms: weapons, weaponry, firearms, guns, ordnance, artillery, armaments, munitions, matériel
      "the illegal export of arms"

      • (Score: 3, Informative) by tangomargarine on Thursday April 13 2017, @09:32PM

        by tangomargarine (667) on Thursday April 13 2017, @09:32PM (#493639)

        That's the *current* dictionary definition. "Gay" didn't mean "homosexual" in the 1770s either.

        (4) The U.S. Constitution does not adequately define "arms". When it was adopted, "arms" included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be "light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare." That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line. The standard has to be that "arms" includes weapons which would enable citizens to effectively resist government tyranny, but the precise line will be drawn politically rather than constitutionally. The rule should be that "arms" includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then "arms" must be interpreted broadly.

        http://www.constitution.org/leglrkba.htm [constitution.org]

        --
        "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
  • (Score: 2) by Immerman on Thursday April 13 2017, @05:23PM (3 children)

    by Immerman (3985) on Thursday April 13 2017, @05:23PM (#493504)

    >Interpretations and adaptations to the current situation are required.

    Right, and we have a name for such adaptations: constitutional amendments. If the legislature doesn't see the need to change the law, then it's not the place of the judiciary to do so.

    • (Score: 2) by NotSanguine on Thursday April 13 2017, @07:39PM

      by NotSanguine (285) <NotSanguineNO@SPAMSoylentNews.Org> on Thursday April 13 2017, @07:39PM (#493585) Homepage Journal

      >Interpretations and adaptations to the current situation are required.

      Right, and we have a name for such adaptations: constitutional amendments. If the legislature doesn't see the need to change the law, then it's not the place of the judiciary to do so.

      Actually, that's incorrect. The federal judiciary is not a subordinate branch of government. It is a co-equal to the legislative and executive branches.

      In fact, it is the primary role of the judiciary to interpret and validate/invalidate Federal (and after the 14th amendment, state) law.

      If the legislature passes a bill that is signed by the president, the judiciary (with SCOTUS being the court of last resort) is empowered to determine the legality and constitutionality of such a law, assuming that suit has been filed by someone with standing to do so.

      N.B. IANAL.

      --
      No, no, you're not thinking; you're just being logical. --Niels Bohr
    • (Score: 2) by dry on Friday April 14 2017, @05:12AM (1 child)

      by dry (223) on Friday April 14 2017, @05:12AM (#493831) Journal

      So you think it is wrong to expand the meaning of papers to include electronic documents or expand presses to include laser printers?

      • (Score: 2) by Immerman on Friday April 14 2017, @02:35PM

        by Immerman (3985) on Friday April 14 2017, @02:35PM (#493980)

        Tell me, in context, does "papers" refer to the information on the sheets, or the specific material it's printed on? Would a lambskin scroll be included in "papers"? A wood-plank book? A clay tablet? I'd say it would be an uphill argument to say no, and that including more modern mediums too is well within their powers of interpretation.

  • (Score: 3, Insightful) by Anonymous Coward on Thursday April 13 2017, @07:08PM (3 children)

    by Anonymous Coward on Thursday April 13 2017, @07:08PM (#493569)

    The "literally" argument in nonsense. Just take one aspect - arms, for example.

    Great example!

    The FF could not have envisioned the firepower we have, nowadays, or will have in the future.

    You might be surprised, actually; repeating arms were known in their day, though they were generally impractical curiosities. With the rapid advances then being made towards practicality of breech-loading arms, I think they might have anticipated more than you think. But certainly, if you go far enough in the future, their vision is bound to fail, so there's no harm in supposing we've already passed that horizon.

    If they had an inkling that one individual could wield enough weaponry, by himself, to take out an entire city block, they might have reconsidered the right to bear arms.

    They might have, but so what? Without such weaponry they had no need to reconsider it; they left a mechanism for people living with inconceivable future weaponry to change the Constitution if/when they need to.

    We can not base our judgements literally, today, on standards that were developed over 200 years ago.

    Of course not -- we have a duty to keep our government up to date, making what changes are needed.

    Interpretations and adaptations to the current situation are required.

    "Interpretations", no. "Adaptations", yes. You're trying to handle those adaptations in the wrong layer. (And you're not alone in this -- a lot of problems we have with government is because, as a nation, we've been handling things in the wrong layer for at least a century or so.)

    The Supreme Court is to interpret what the Constitution says; if we don't like what it says, we amend it until we do.

    • If there's a strong enough consensus, amending the Constitution shouldn't be a problem; then Congress can pass a law implementing whatever changes they were unable to before.
    • Even though a law passing both houses of Congress is an indication that there is consensus, if that consensus is not strong enough to amend the Constitution to actually give Congress that power, the law gets struck down. If it's a real problem, and can't be fixed without an amendment, you'll get your 2/3 majority soon enough.

    If the Supreme Court lets unconstitutional laws stand by interpreting the Constitution as "what I'd like to believe the founders would have written and ratified, if only they'd known about $MODERN_THING", then Congress has no incentive to be careful of constitutionality in the laws they pass, and neither Congress nor the states have motivation to actually amend the constitution. If you keep this up, the Constitution falls farther and farther behind, and more and more power is progressively handed to the Supreme Court, as they're the ones letting laws stand or fall based on constitutional fanfic.

    One side effect of this accumulation is getting locked in battles over what flavor of ideologues to pack the Supreme Court with -- but that's not the real problem.

    Since the Supreme Court, Congress, and the Presidency all run on some variation of strict-majority rules, there's a tremendous stability problem -- something gets changed, the other party takes over, and it gets changed back. In Congress, at least, you do get good responsiveness to the electorate, so it's not all bad. (The Supreme Court only changes rarely, so it doesn't even have that benefit -- it was never designed to be an instrument of political expression, and it's poorly suited to do so.) A supermajority system (such as the 2/3 to amend the Constitution), on the other hand, has hysteresis -- that means it's much harder to change in the first place, so it tends to lag the actual will of the people, but once you change it, it won't be changed back as things teeter-totter between 51-49 and 49-51. These systems complement each other, which is why we're supposed to have the overall shape of government -- what things the government can do, what things it must do, and what things it can't do -- defined in the Constitution, and not capable of being changed lightly. Meanwhile, big and small tweaks within that shape can be quickly and easily changed by Congress to reflect the everchanging will of the people.

    But when you transfer all the power to hysteresis-less branches, you're long on responsiveness, short on stability -- you pass a huge health-insurance thing, and a few years later as everyone's just getting the hang of it, we're kinda-sorta set to repeal and replace it with something completely different. And in 4 or 8 years, when the other party is back in power, you can bet it'll be changed again -- no matter which (or neither) party's vision for healthcare is your ideal, surely we can agree that this seesawing is harmful, and we'd be better off with some version 2/3 of the people can live with and it stops changing?

    And if this approach doesn't work well because there's too much hysteresis in the Constitutional amendment process, maybe we should have something like 3/5 or 55% (or pick a number); it should be easy to amend the Constitution to change the amendment procedure -- you can build support from left and right, as they'll each have their own amendments they'd like, but can't quite get passed by 2/3. But this goes back to the Court doing its job -- as long as they let unconstitutional laws stand, there's no incentive to make amendments, much less to make amendments about the amendment process.

    • (Score: 2) by NotSanguine on Thursday April 13 2017, @07:48PM

      by NotSanguine (285) <NotSanguineNO@SPAMSoylentNews.Org> on Thursday April 13 2017, @07:48PM (#493589) Homepage Journal

      If there's a strong enough consensus, amending the Constitution shouldn't be a problem; then Congress can pass a law implementing whatever changes they were unable to before.
              Even though a law passing both houses of Congress is an indication that there is consensus, if that consensus is not strong enough to amend the Constitution to actually give Congress that power, the law gets struck down. If it's a real problem, and can't be fixed without an amendment, you'll get your 2/3 majority soon enough.

      This should give you some idea as to why it's difficult to amend the constitution [youtube.com].

      As an aside, in addition to a 2/3 majority in both houses of Congress, 3/4 of state legislatures must also pass an amendment as well.

      --
      No, no, you're not thinking; you're just being logical. --Niels Bohr
    • (Score: 1) by charon on Friday April 14 2017, @04:50AM (1 child)

      by charon (5660) on Friday April 14 2017, @04:50AM (#493823) Journal
      Thank you. This is the strongest argument in favor of originalism I've ever read. The only drawback is that eventually the constitution becomes a stub with hundreds of amendments that modify and negate earlier sections and amendments. It's manageable with its current 27, but eventually we'd need a new Convention to refactor the code, so to speak.
      • (Score: 2) by Immerman on Friday April 14 2017, @02:39PM

        by Immerman (3985) on Friday April 14 2017, @02:39PM (#493984)

        Don't even need a convention.

        Amendment 83: The constitution and all previous amendments are hereby null and void, and replaced by the following text:

  • (Score: 1, Insightful) by Anonymous Coward on Thursday April 13 2017, @11:07PM

    by Anonymous Coward on Thursday April 13 2017, @11:07PM (#493687)

    The FF had cannons. Including the effects of fire, or a lengthy barrage with exploding shells, a cannon is enough to take out a city block.

    Our constitution offers two ways to restrict arms. The first is a new amendment. The second, which is easy to abuse and currently covers nukes, is a treaty.

    Judges are supposed to follow what is written. If we don't like what is written, we can change what is written. Begging justices to abuse their position is not good for the long-term stability of our government.