# Change the Constitution: A what-if discussion **URL:** \ **Category:** Great Debates\ **Created:** [December 4, 2004, 7:23am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041 "2004-12-04T07:23:12Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [December 4, 2004, 7:21pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/41 "2004-12-04T19:21:42Z")
> [@Dewey Cheatem Undhow](#): > > If they intended selective incorporation and named those things they wanted selectively incorporated, why didn’t they list other things besides due process? Maybe they realized that was a role better suited for the judiciary? Maybe not, I’m just throwing it out there. > [@Dewey Cheatum Undhow](#): > > The simpler explanation is that they weren’t trying to incorporate, and they named due process because that was the one thing in the Bill of Rights they wanted enforced against the states. Occam’s Razor. Possibly, but my problem with original intent arguments is that a process of many dozens of differently minded people arguing, compromising and ratifying are assumed to have a single intent for the Amendment and to be speaking with a single voice like a Greek chorus. The original framers apparently discussed judicial review in the conventions and left it out for whatever reason. However, the Supremacy Clause is impotent without it, so it was judicially assumed. At a certain point it seems determining original intent is soothsaying; even assuming that a single intent existed, how can we know what the framers of an Amendment intended for its application in every circumstance it arises judicially? I’m not sure that “they probably intended it like this” is a better argument than “this is the best application of the concept as we now understand it.” ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 4, 2004, 7:24pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/42 "2004-12-04T19:24:28Z")
> [@pravnik](#): > > Even decisions about the incorporation of unenumerated rights, like the dreaded penumbral right to privacy? I accept the part dealing with incorporation on _stare decisis_ grounds. What I reject is the part creating the right in the first place. ---
**Author:** ![dalej42](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@dalej42](https://boards.straightdope.com/u/dalej42)\ **Post date:** [December 4, 2004, 7:25pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/43 "2004-12-04T19:25:38Z")
I would like the power of the Supreme Court to be more defined. _Marbury v Madison_ allowed judicial review of acts of Congress. I’d like the Constitution to specify that judicial review is either allowed or disallowed. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 4, 2004, 7:31pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/44 "2004-12-04T19:31:18Z")
> [@Gorsnak](#): > > Rather disingenuous of you to then use the existence of the 19th as evidence that equal protection doesn’t (or shouldn’t, anyways) extend to gender, as you have done in the past. Well, I did say “arguably.” 🙂 I tend to see the fifteenth as a clarification of the fourteenth, FWIW. I think racially discriminatory voting restrictions could easily be picked up by the fourteenth. > [@Gorsnak](#): > > Your general argument on intent is also rather odd, since most of the framers of the Bill of Rights were proponents of natural rights theory. Surely, then, it should be read through that lens, but you of course do not accept this. No, because their metaphysical views have little to do with their views on what the judiciary should or should not be able to do. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [December 4, 2004, 7:33pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/45 "2004-12-04T19:33:29Z")
> [@Dewey Cheatem Undhow](#): > > If all men were angels, we could rely on their inherent goodness and wouldn’t need a government. But all men aren’t angels. I have never advocated having no government. Incidentally, your argument is a [denial of the antecedent](http://www.fallacyfiles.org/denyante.html), a logical fallacy of the form: If A, then B; Not A; therefore, Not B. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [December 4, 2004, 7:35pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/46 "2004-12-04T19:35:32Z")
> [@MGibson](#): > > How could we even have a government without a legislature? > > Marc I suppose that depends on what you want government to do. If you want it to write laws, you need a legislature. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 4, 2004, 7:38pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/47 "2004-12-04T19:38:22Z")
> [@Dewey Cheatem Undhow](#): > > No, because their metaphysical views have little to do with their views on what the judiciary should or should not be able to do. Nonsense. Their metaphysical views have everything to do with what they thought they were actually doing with the Bill of Rights, i.e., protecting pre-existing rights from government interference, not creating rights by fiat. It also argues against the conventional legal understanding of the infamous 9th, etc. No, don’t reargue that understanding. Just recognize that the views of the framers on moral philosophy has implications for understanding what they thought they were doing. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 4, 2004, 7:42pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/48 "2004-12-04T19:42:49Z")
> [@Dewey Cheatem Undhow](#): > > I think racially discriminatory voting restrictions could easily be picked up by the fourteenth. > [@Dewey Cheatem Undhow](#): > > If the equal protection clause was meant to be so broad, why did women need to pass the 19th amendment in order to gain the franchise? [link](http://boards.straightdope.com/sdmb/showpost.php?p=4489132&postcount=195) I repeat - the wholly unnecessary 15th Amendment. ---
**Author:** ![Netbrian](https://avatars.discourse-cdn.com/v4/letter/n/71e660/32.png) [@Netbrian](https://boards.straightdope.com/u/Netbrian)\ **Post date:** [December 4, 2004, 8:14pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/49 "2004-12-04T20:14:30Z")
In addition to making the SoCaS more explicit in the first amendment, and tidying up how voting is conducted (condorcet voting, nip gerrymandering in the bud), I might work to enshrine an explicit right to privacy, something that would clarify quite a lot throughout the centuries. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [December 4, 2004, 8:40pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/50 "2004-12-04T20:40:34Z")
> [@Menocchio](#): > > One extremely vague law to be interpreted by the courts (are they still unelected in your world? They’d better not be, they have absolute power) with no recourse to amend or change it without overthrowing the government. The entirety of government would be decided by court precident, which could never be overturned by the people, but could be thrown out whenever a jurist feels like it. Rule by lawyers, but not rule by law. Even if you are a magic man from the future, I doubt the founding fathers would be so dumb as to adopt this one. There’s nothing intrinsically wrong with vagueness, especially when peoples’ lives and property hang in the balance. Vagueness allows room for fairness and for consideration of circumstances and consequences that even two million laws might not cover. Different communities have different needs based on their local situations and demands. A law dictating a specific global regulation might not fit both rural Wyoming and urban South Central Los Angeles. Besides, you already have rule by lawyers, which is what most legislators and judges are. Free people in a just society overturn oppressive government by seceding from it. If a government rules a man without his consent, it is tyrannical. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 4, 2004, 11:15pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/51 "2004-12-04T23:15:37Z")
> [@Gorsnak](#): > > Nonsense. Their metaphysical views have everything to do with what they thought they were actually doing with the Bill of Rights, i.e., protecting pre-existing rights from government interference, not creating rights by fiat. It also argues against the conventional legal understanding of the infamous 9th, etc. No, don’t reargue that understanding. Just recognize that the views of the framers on moral philosophy has implications for understanding what they thought they were doing. Nonsense yourself. One can believe in metaphysical, preexisting rights and yet simultaneously believe that judicial review is not the proper mechanism for recognizing and enforcing those rights, at least insofar as they have not already been recognized and ratified by legislative majorities or constitutional amendments. > [@Gorsnak](#): > > I repeat - the wholly unnecessary 15th Amendment. I’m not sure why you think this is such a contradictory point. I’ve also often pointed out in the past that the tenth amendment ought to be totally unnecessary; the very structure of government established by the main text of the constitution is one where the federal government has limited, enumerated powers. Yet apparently the founders felt this needed to be underscored by passing the tenth amendment. Indeed, perhaps they should have underscored it with a few more repetitive amendments, since the courts have regularly expanded the power of the federal government under the guise of interstate commerce for the past century. Sometimes things are passed for purposes of clarity. If you want to argue that the nineteenth amendment represents mere clarification of an existing right, as opposed to the wholesale creation of a new right, have at it. While you’re at it, you can discuss the twenty-fourth and twenty-sixth amendment. Good luck. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 4, 2004, 11:20pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/52 "2004-12-04T23:20:16Z")
> [@Liberal](#): > > I have never advocated having no government. No, but your proposed system still requires men to be angels. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 4, 2004, 11:22pm UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/53 "2004-12-04T23:22:27Z")
> [@Liberal](#): > > If a government rules a man without his consent, it is tyrannical. Just curious, **Lib** – is there any real-world government that you _don’t_ consider “tyrannical”? ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 5, 2004, 12:03am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/54 "2004-12-05T00:03:05Z")
> [@Dewey Cheatem Undhow](#): > > Nonsense yourself. One can believe in metaphysical, preexisting rights and yet simultaneously believe that judicial review is not the proper mechanism for recognizing and enforcing those rights, at least insofar as they have not already been recognized and ratified by legislative majorities or constitutional amendments. But that’s not what you said. You said their metaphysical views were irrelevant to understanding their intent, which you have in no way established. > [@](#): > > I’m not sure why you think this is such a contradictory point. I’ve also often pointed out in the past that the tenth amendment ought to be totally unnecessary I don’t think it’s a contradictory point. It’s not my argument that the purported superfluous nature of an amendment shows that it can’t be understood in some particular fashion. Rather, it is you who have made arguments in the past (i.e., absence of specific language evidence against incorporation being intended, superfluous 19th establishes that gender isn’t covered by 14th, superfluousness of due process in 14th wrt 5th if incorporation were intended) while at the same time you deny the validity of precisely the same arguments purporting to show other things (i.e., absence of specific language evidence against narrow reading of equal protection, superfluous 15th evidence that even race not covered by equal protection). Either these types of arguments demonstrate something, or they do not. They cannot be valid if and only if their conclusions are ones you support. I don’t care how you resolve this contradiction, myself. If you drop the point about the 19th amendment and due process in the 14th and 5th, allowing that they are merely clarifications that show nothing about what the earlier amendments do not establish, and argue that the detailed history renders the situation with regards to the narrowness of equal protection different from that of incorporation, that’s fine with me. But that isn’t the position you have staked out. The position you have staked out is internally inconsistent. That is my point. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 5, 2004, 1:05am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/55 "2004-12-05T01:05:45Z")
> [@Gorsnak](#): > > But that’s not what you said. You said their metaphysical views were irrelevant to understanding their intent, which you have in no way established. No, it isn’t. Go back and read what I actually wrote. I said their metaphysical views have little to do with what they believed _the judiciary ought to be able to do_. > [@Gorsnak](#): > > I don’t care how you resolve this contradiction, myself. If you drop the point about the 19th amendment and due process in the 14th and 5th, allowing that they are merely clarifications that show nothing about what the earlier amendments do not establish, and argue that the detailed history renders the situation with regards to the narrowness of equal protection different from that of incorporation, that’s fine with me. But that isn’t the position you have staked out. The position you have staked out is internally inconsistent. That is my point. I don’t think it is. The notion that the fifteenth is merely a clarification is bourne out by both its closeness in time to the fourteenth and by the text of the fourteenth itself (note section 2 of the fourteenth). It’s also bourne out by its judicial use, invalidating measures disguised measures designed to disenfranchise blacks such as “grandfather clauses.” That makes it a lot more similar to the Tenth Amendment/Article I, s. 8 than it does to the other things we’re talking about. Those factors simply aren’t present in terms of women’s suffrage, or poll taxes, or extending the franchise to 18 year olds. I don’t think you can plausibly argue that, say, the 19th was a mere clarification of an already-existing right enshrined by the equal protection clause. Certainly the suffragettes didn’t see it that way. I think the only really plausible conclusion is that the fourteenth wasn’t seen at the time of its writing as extending any kind of protections on the basis of gender, much less the right to vote for women. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 5, 2004, 2:03am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/56 "2004-12-05T02:03:57Z")
> [@Dewey Cheatem Undhow](#): > > No, it isn’t. Go back and read what I actually wrote. I said their metaphysical views have little to do with what they believed _the judiciary ought to be able to do_. I’m sorry, I don’t see your point here. What the judiciary ought to be able to do is surely, in your view, determined by the intent of the framers, and the intent of the framers is inextricably tied up in the details of their views on the nature of rights, etc. > [@](#): > > I don’t think it is. The notion that the fifteenth is merely a clarification is bourne out by both its closeness in time to the fourteenth and by the text of the fourteenth itself (note section 2 of the fourteenth). It’s also bourne out by its judicial use, invalidating measures disguised measures designed to disenfranchise blacks such as “grandfather clauses.” That makes it a lot more similar to the Tenth Amendment/Article I, s. 8 than it does to the other things we’re talking about. > > Those factors simply aren’t present in terms of women’s suffrage, or poll taxes, or extending the franchise to 18 year olds. I don’t think you can plausibly argue that, say, the 19th was a mere clarification of an already-existing right enshrined by the equal protection clause. Certainly the suffragettes didn’t see it that way. I think the only really plausible conclusion is that the fourteenth wasn’t seen at the time of its writing as extending any kind of protections on the basis of gender, much less the right to vote for women. I can’t see how your points on the 15th are significant. If equal protection covers voting rights, then the 14th is plenty unequivocal on that matter. It’s only if one argues that equal protection doesn’t extent to voting rights that the 15th becomes significant, in which case the “need” for the 19th is irrelevant to the question of whether gender is covered by equal protection. And if you’re going to argue that the 15th is merely a clarification, then I can’t see how you could think that the due process clause in the 14th is significant re incorporation due to its quasi-duplication of the 5th. Something’s gotta give, here. You’re trying to have things both ways. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 5, 2004, 5:10am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/57 "2004-12-05T05:10:30Z")
> [@Gorsnak](#): > > I’m sorry, I don’t see your point here. What the judiciary ought to be able to do is surely, in your view, determined by the intent of the framers, and the intent of the framers is inextricably tied up in the details of their views on the nature of rights, etc. I don’t see why this such a hard point. One can simultaneously believe that rights exist independently on a metaphysical level and yet not believe that the judiciary is the appropriate place for those rights to be recognized in the first instance. Just because (some of) the framers adopted a natural rights view doesn’t mean they intended judicial legislation to be the norm. Indeed, based on how they structured the government and on the arguments they used in promoting it, I think that view the most accurate. > [@Gorsnak](#): > > I can’t see how your points on the 15th are significant. If equal protection covers voting rights, then the 14th is plenty unequivocal on that matter. It’s only if one argues that equal protection doesn’t extent to voting rights that the 15th becomes significant, in which case the “need” for the 19th is irrelevant to the question of whether gender is covered by equal protection. And if you’re going to argue that the 15th is merely a clarification, then I can’t see how you could think that the due process clause in the 14th is significant re incorporation due to its quasi-duplication of the 5th. Something’s gotta give, here. You’re trying to have things both ways. I disagree, for the reasons I’ve stated. We’re going in circles now. And, BTW, there’s nothing “quasi” about the duplication of the due process clause. Both the 5th and 14th amendments protect exactly the same thing – the right against deprivation of “life, liberty, or property, without due process of law.” ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [December 5, 2004, 5:57am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/58 "2004-12-05T05:57:58Z")
> [@Dewey Cheatem Undhow](#): > > I don’t see why this such a hard point. One can simultaneously believe that rights exist independently on a metaphysical level and yet not believe that the judiciary is the appropriate place for those rights to be recognized in the first instance. Just because (some of) the framers adopted a natural rights view doesn’t mean they intended judicial legislation to be the norm. Indeed, based on how they structured the government and on the arguments they used in promoting it, I think that view the most accurate. Ah, I understand now. You completely misunderstood my point. I never said anything about “judicial legislation being the norm”. I suggested that reading the Bill of Rights through the lens of natural rights theory may lead one to an understanding of it that isn’t consistent with the majoritarian absolutism that underlies your understanding of it, but rather places a greater emphasis on the protection of individual rights. It needn’t be a radical shift to your strawman of “judicial legislation being the norm”, just a change in emphasis. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [December 5, 2004, 7:11am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/59 "2004-12-05T07:11:52Z")
> [@Dewey Cheatem Undhow](#): > > No, but your proposed system still requires men to be angels. Maybe so, but better than yours, which requires that they be devils. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [December 5, 2004, 7:15am UTC](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041/60 "2004-12-05T07:15:30Z")
> [@Dewey Cheatem Undhow](#): > > Just curious, **Lib** – is there any real-world government that you _don’t_ consider “tyrannical”? Is there any real-world government that does not claim eminent domain over your rights and property? [Previous page](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041.md?page=2) [Next page](https://boards.straightdope.com/t/change-the-constitution-a-what-if-discussion/278041.md?page=4)