Reading the Constitution

[PoliteNewb]

Even the 1st Amendment isn't as clear as we'd hope. Telling people that rat poison is sweetener is clearly an attempted murder rather than free expression. But where does the line go?

Can't that be judged by the results of your actions? The fact that you can kill people with words is not any kind of argument in favor of curtailing the 1st amendment.

You have a right to speak, until you use that right to kill people. You have a right to carry a gun, until you use it to kill people. What you can't do is say, "this person might use his rights to kill people" and use that as an argument for limiting them. You punish people AFTER they do things wrong. Until then, people are presumed innocent, and you trust them not to abuse their rights.

And if we can't even agree on what the Constitution does say, do you really think we could get everyone to agree on what it should say?

We need to come to a compromise, or we don't have a system of laws. When in doubt, the Constitution (like all laws) should be interpreted as narrowly as possible. Anything else is just giving government a bucketful of power along with the authority to use violence to enforce its will and saying, "hey, do whatever".

So we know that any actual amendment or clause is so vague it can mean anything. What we do have is a series of cases where the court has come up with various tests to determine if something is "constitutional" or "non-constitutional" and then come down on the merits of the case.

I can understand and accept judicial review, within reason (more on this in a bit). I don't agree that any amendment or clause is so vague it can mean anything. English is an actual language with actual meanings, and there are some things amendments and clauses actually CAN'T mean.

I mean, the laws that protect you also protect child molesters, and the court has to decide if protecting you is more important that getting those guys in a way politicians never will (they will always be on the side of "tough on crime", regardless of the freedoms they remove from the rest of us).

I can agree with this fully.

Also, they are often bound by precedent and can't override that without overwhelming reasons. This is why corporations are now allowed unlimited ability to donate to political causes.... something which we might see as a terrible undermining of democracy, but you need to blame the case law that has consistently come down on the side of the corps over the people.

And this is the problem sometimes with case law precedent...there are bad precedents as well as good ones (someone already mentioned Dred Scott). If the courts ignore something long enough, it becomes de facto "okay", even if it's blatant bullshit.

For example: how come despite all Supreme Court precedent coming down on the side of an individual right to bear arms (including Nunn v. State of Georgia, which struck down a handgun ban), state legislatures have passed plenty of laws going against this, including handgun bans, and courts haven't overturned them? Hell, until the Heller decision, most lower court precedent seemed to support anti-gun laws. And then all of a sudden, the Supreme Court issues the new decision and overturns all that precedent.

So, what were the overwhelming reasons for ignoring the Nunn decision? What were the overwhelming reasons for deciding Heller? Am I misunderstanding the situation?

[K]

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Also, they are often bound by precedent and can't override that without overwhelming reasons. This is why corporations are now allowed unlimited ability to donate to political causes.... something which we might see as a terrible undermining of democracy, but you need to blame the case law that has consistently come down on the side of the corps over the people.

And this is the problem sometimes with case law precedent...there are bad precedents as well as good ones (someone already mentioned Dred Scott). If the courts ignore something long enough, it becomes de facto "okay", even if it's blatant bullshit.

For example: how come despite all Supreme Court precedent coming down on the side of an individual right to bear arms (including Nunn v. State of Georgia, which struck down a handgun ban), state legislatures have passed plenty of laws going against this, including handgun bans, and courts haven't overturned them? Hell, until the Heller decision, most lower court precedent seemed to support anti-gun laws. And then all of a sudden, the Supreme Court issues the new decision and overturns all that precedent.

So, what were the overwhelming reasons for ignoring the Nunn decision? What were the overwhelming reasons for deciding Heller? Am I misunderstanding the situation?

I don't know the specifics of the Nunn decision or the history of the handgun or 2nd amendment debate, but I can give you the broad strokes.

Ok, so a case comes up before the court. The court issues a ruling on the merits of that exact case. This means that the law in question would get struck down on it's own merits and not the merits of gun ownership as an issue. I mean, maybe as a law it's overly board or imprecise, and that's a good reason to strike it down.

Issues don't go to court. The court doesn't make laws, and it's very clear about that. This why slavery was upheld in the courts.... it was legal at the time.

What it does do for issues is general tests for interpreting laws. There is test for interpreting first amendment cases and that means that lower courts have some guidance when dealing with these issues.

The most important thing to remember about the Supreme Court is that they look at the big picture. If they uphold a law on one day, and twenty years later that law is bullshit because of new data or new social changes, they can strike it down because it's bullshit. Precedent only influences the Supreme Court, it doesn't bind it (though this is somewhat true in the lower courts).

So you are never going to get a ruling from the Supreme Court that says all handgun laws are unconstitutional. They are going to look at the merits of each case and the data. For example, if we had a huge rise in handgun deaths then the court might allow laws that restrict handguns, but if we came up with some sci-fi lock that restricted handgun use then we might get handgun laws being stricken down. The court can always change its opinion as the world changes, meaning it actually is designed to correct the problems you are talking about.

[Sashi]

Even the 1st Amendment isn't as clear as we'd hope. Telling people that rat poison is sweetener is clearly an attempted murder rather than free expression. But where does the line go?

Can't that be judged by the results of your actions? The fact that you can kill people with words is not any kind of argument in favor of curtailing the 1st amendment.

What? No. In most cases words are expression, but in a small number of cases words are actually weapons. That's why we have libel/slander law, and why punishing people for shouting "fire" in a crowded theater, even if nobody gets hurt, isn't infringing on "free speech".

If you shoot at paper targets at the gun range, that's fine. If you shoot the gun at people, it's attempted murder. You don't need to wait until the bullets actually kill someone to prosecute, just like you don't need to wait for someone to actually die from the rat poison to make the company take "use it as a sweetener" off the packaging.

[tzor]

The courts were deciding Constitutional questions from the very beginning, even before all the amendments were fully ratified. Obviously the founding fathers approved since they allowed it.

Actually, once the wheels were set in motion, there was little they could do about it. The blance between the monarchists and the federalists caused the founding fathers to hate each other. (The rift between Jefferson and Adams is the most obvious.) Jefferson would eventually complain about the tyrany of the judiciary.

And, frankly, very little of this really mattered. The pre civil war United States was a lot different than the post civil war United States. Nulification belonged to the courts, including the state supreme courts who could easily nullify any federal law they didn't like.

Besides, we were on the brink of war or in war for most of the initial decades after the constitution; we had more important things to worry about.

Remember the Alien and Sedition laws came from POTUS #2, John Adams.

[tzor]

That's why we have libel/slander law, and why punishing people for shouting "fire" in a crowded theater, even if nobody gets hurt, isn't infringing on "free speech".

You know, a blogging friend of mine just blogged about the following which came from a US State Department publication, Rights of the People: Individual Freedom and the Bill of Rights.

The origins of freedom of speech and press are nearly alike, because critical utterances about the government, either written or spoken, were subject to punishment under English law. It did not matter whether what had been printed was true; government saw the very fact of the criticism as an evil, since it cast doubt on the integrity and reliability of public officers. Progress toward a truly free press, that is, one in which people could publish their views without fear of government reprisal, was halting, and in the mid-18th century the great English legal commentator, Sir William Blackstone, declared that although liberty of the press was essential to the nature of a free state, it could and should be bounded.

Sir William Blackstone, Commentaries on the Laws of England (1765)

Where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law … the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

But what constituted "blasphemous, immoral, treasonable, schismatic, seditious or scandalous libels"? They were, in fact, whatever the government defined them to be, and in essence, any publication even mildly critical of government policy or leaders could lead to a term in prison or worse. In such a subjective judgment, truth mattered not at all.

The American colonists brought English common law across the Atlantic, and colonial officials had as little toleration for the press as did their masters back home. In 1735, the royal governor of New York, William Cosby, charged newspaper publisher John Peter Zenger with seditious libel for criticizing Cosby's removal of a judge who had ruled against the governor's interests in an important case. Under traditional principles as enunciated by Blackstone, Zenger had a right to publish his criticism, but now had to face the consequences. However, Zenger's attorney, Andrew Hamilton, convinced the jury to acquit Zenger on the grounds that what he had published was true. Although it would be many years before the notion of truth as a complete defense to libel would be accepted in either English or American law, the case did establish an important political precedent. With American juries unwilling to convict a man for publishing the truth, or even an opinion, it became difficult for royal officials to bring seditious libel cases in the colonies. By the time of the Revolution, despite the laws on the books, colonial publishers freely attacked the Crown and the royal governors of the provinces.

Hmmm, interesting flip flop isn't it? Libel was a way for the crown to keep people from telling the inconvenient truths about them; and in America the defense against the libel was the fact that the statements were true.

[PoliteNewb]

Can't that be judged by the results of your actions? The fact that you can kill people with words is not any kind of argument in favor of curtailing the 1st amendment.

What? No. In most cases words are expression, but in a small number of cases words are actually weapons. That's why we have libel/slander law, and why punishing people for shouting "fire" in a crowded theater, even if nobody gets hurt, isn't infringing on "free speech".

If you shoot at paper targets at the gun range, that's fine. If you shoot the gun at people, it's attempted murder. You don't need to wait until the bullets actually kill someone to prosecute, just like you don't need to wait for someone to actually die from the rat poison to make the company take "use it as a sweetener" off the packaging.

But you do need to wait for someone to actually shoot at people. You can't simply say, "we want to make handguns illegal, because someone might stick one in their pants and shoot a police officer, or worse yet maybe some schoolkids because THINK OF THE CHILDREN". But people seriously do say shit like that all the time, even though it's ridiculous, and unconstitutional.

My point was that Frank's point was a non-point. Of course you don't have a right to kill people through your actions. That has fuck-all to do with freedom of speech, as an ideal. It has to do with what you DO with your freedom of speech, or freedom of the press, or freedom of religion, or freedom to bear arms.

He seemed to think that it's some great dilemma that your words can kill someone..."so how can you have a right to free speech?". I don't think "you have a right to speech that doesn't result in demonstrable harm or the immediate high probability thereof to someone" is a hard call there. And that works for all rights.

So you are never going to get a ruling from the Supreme Court that says all handgun laws are unconstitutional. They are going to look at the merits of each case and the data. For example, if we had a huge rise in handgun deaths then the court might allow laws that restrict handguns, but if we came up with some sci-fi lock that restricted handgun use then we might get handgun laws being stricken down. The court can always change its opinion as the world changes, meaning it actually is designed to correct the problems you are talking about.

Wait, what the fuck is this? I thought courts were supposed to be deciding this based on whether those laws (or each individual law, if you like) is constitutional or not. Not how they particularly feel about the matter, or whether or not they think it's a good idea, or hell, even how many people are dying. There's no proviso in the Bill of Rights that says "we can ignore these if we think it's a good idea, or if someone has some convincing data about handgun deaths".

This is exactly the same as I said to Sashi...you don't punish people or decide law on what people MIGHT do. You punish people for what they have done. The idea that you should restrict 99% of the populace in their actions because of what the 1% might do is fucked up.

More generally, I didn't think precedents were about specific cases, I thought they were about legal reasoning...if they were only about specific cases, why would they be useful in deciding other cases, which almost always have different circumstances? Aren't precedents a way of saying, "this legal argument holds water"...and if the argument is "the 2nd amendment guarantees the right to keep and bear arms, which means people can own handguns", that's pretty straightforward reasoning. Where exactly is the fudge factor here?

I mean, shit, laws need to apply generally, because they need to be applied fairly and objectively to the people as a whole. If the courts can say "these guys over here can ban handguns and it's not a 2nd amendment violation, but those guys over there can't, because it totally is", that's kind of bullshit.

And while I'm for evolution of ideas, I am not in favor of changing laws (or even interpretation of laws) based on public opinion. All that's going to do is promote tyranny of the majority, as it has in the past. When everybody thought queers were horrible, laws discriminating against them were A-okay. Now those laws aren't, and that's a good thing...but the fact that they aren't okay should be based on the fact that homosexuals have equal rights to heterosexuals, and the government should not care what consenting adults are doing in bed...not the fact that gay people are socially acceptable now. Because if the time ever comes when they AREN'T as accepted, I don't want the precedents to start swinging back the other way.

[K]

This is exactly the same as I said to Sashi...you don't punish people or decide law on what people MIGHT do. You punish people for what they have done. The idea that you should restrict 99% of the populace in their actions because of what the 1% might do is fucked up.

Then you don't understand the law. I mean, less than 1% of the population are murderers, but we make that illegal. Lots of laws are made to punish that 1 in 100,000 criminal.

Our laws are based on English common law, which means all our laws can be altered or reinterpreted by the courts for any good reason, including those based on changes in society's opinions. The reason that Justices are given positions for life is so that they are immune to base political pressures and can do what is good for the people (in theory).

Precedent is simply is a guide for solving a particular kind of legal problem. Sometimes, that test may not work and a new test is created. Sometimes a judge will have a choice of tests to use and use the one he likes. Sometimes a judge from a higher court will disagree with the test used by a lower court judge and use a different one.

No legal system is ever go to get around the fact that it is basically a shared illusion for the people that somehow can still provide resolution to the conflicts of society. It beats murdering people in the streets by a long way.

Basically, the law is being houseruled all the time, in almost every case. Legal systems that don't do that become tools for tyranny pretty quick.

[tussock]

No idea how they get away with banning religious observance, "establishment" means the government declaring one true religion for your state, not saying a prayer at football game.

Religious observance has never been banned ever.

It's banned all over the show. As you noted, it's largely forbidden to exercise your religion if you have government funding for any part of your operation, which pretty much everything does in the modern state. Schools are compulsory, get government funding, and to a very large extent you can't exercise your religion there any more. "Pray in your head" is bullshit, and typical Protestantism.

Don't get me wrong, banning religion is brilliant, but it's clearly unconstitutional.

Saying "establishment is only declaring one true religion for the state, not practicing religion" is a cop out.

Words mean things, and that's what that one means. It forbids any and all legislative restrictions on religion, while saying the state must not legislate an establishment of religion.

"I shouldn't have to listen to this religious nonsense" is a perfectly reasonable request, but it's unconstitutional for the government to make them stop it. You're free to walk out, after all. Social pressure? Yeh, that's freedom for you. Were the government building churches, or mandating attendance at religious services, you'd have a point, but if individuals choose to exercise their religion (like by proselytising) it's supposed to stay the fuck out of it.

Bet eh, good result, bullshit method.

[Kaelik]

It's banned all over the show. As you noted, it's largely forbidden to exercise your religion if you have government funding for any part of your operation

No, it's largely forbidden to use government funding to observe your religion.

You are just wrong, as your example, and any example you come up with will show.

Schools are compulsory, get government funding, and to a very large extent you can't exercise your religion there any more. "Pray in your head" is bullshit, and typical Protestantism.

Well, you can pray in your head, you can pray out loud except during times of mandatory silence, some states have mandatory silence periods for the express purpose of prayer, you can say whatever you damn well please about god any time you are free to talk, and you can start a Christian organization that meets after school and talks about God because it's a voluntary organization.

Things you can't do are:

1) Demand that other people pray with you, or sit quietly while you pray.
2) Pray out loud at any time silence is required, such as during a test, which is the same time you also can't criticize the government, but I don't hear about how this is the schools banning freedom of speech.
3) Pray loudly when the teacher is trying to teach. Again, a time you couldn't talk about how the President is not born in the US. Still not abridging freedom of speech, also not abridging religion.
4) You can talk about how god created the earth in seven days in Science class, you just can't expect the teacher to go along with your crazy or let you have the last word if they are trying to teach.
5) You can't use your authority as a teacher or administrator to compel or coerce or unduly influence children about religion (you can duly influence them, like if they start the conversation and you respond, and allow them to leave the conversation whenever they want).

Those are the things you can't do, and all of them fall under "not abusing your government granted authority" or "not wasting everyone else's time."

Seriously, you have no fucking complaint, religion is not banned at all.

Words mean things, and that's what that one means. It forbids any and all legislative restrictions on religion, while saying the state must not legislate an establishment of religion.

That's because they thought that the government should only do things that it was legislated that it do. Saying "It's okay if the judge has a giant cross, and then commands everyone in his court to pray to jesus every day, because he's not the legislature" is fucking bullshit, and if you had any intellectual honesty, you'd know that.

I mean, yes the literal words are Congress shall make no law. But if you already accept that States can't mandate religion you've already accepted some interpretation. If you want to be super fucking literal, then the fact that my religion requires me to murder post office workers prevents congress from making laws protecting post office workers, because it says "no law" not "no law, except when the religion causes harm to others"

but if individuals choose to exercise their religion (like by proselytising) it's supposed to stay the fuck out of it.

If individuals choose to exercise their religion, like proselytizing, the government doesn't ban that, unless those individuals seek to use government authority to proselytize.

[tzor]

This is exactly the same as I said to Sashi...you don't punish people or decide law on what people MIGHT do. You punish people for what they have done. The idea that you should restrict 99% of the populace in their actions because of what the 1% might do is fucked up.

I'm going to play Devil's Advocate here. There are cases where the severity of the crime is in fact based on what people might do. A good case is DWI laws. Being intoxcicated is not in and of itself a crime. Driving while intoxcicated is a major crime because there is a significant chance you might do something while driving that car in that state and wind up seriously hurting or killing someone. The laws of reckless endangerment have a similiar notions of what might happen. "Reckless endangerment is a crime consisting of acts that create a substantial risk of serious physical injury to another person."

[PoliteNewb]

This is exactly the same as I said to Sashi...you don't punish people or decide law on what people MIGHT do. You punish people for what they have done. The idea that you should restrict 99% of the populace in their actions because of what the 1% might do is fucked up.

Then you don't understand the law. I mean, less than 1% of the population are murderers, but we make that illegal. Lots of laws are made to punish that 1 in 100,000 criminal.

You completely misunderstood me. Murder is the example of a good law...we punish the 1% for their actions, and we DON'T punish the 99% who didn't TRY to murder people.
I'm saying you should not pass laws that affect EVERYONE, whether or not they are murderers, in order to make things more difficult for the 1%. Especially because it often does not affect the 1% at all, and simply makes things more difficult for the 99%.

(EDITED for clarity: I'm speaking of the difference between people who actually attempt crimes, and those who are simply walking around)

In essence, you do not punish people or restrict them for crimes they did not yet commit, because of crimes you're afraid they MIGHT commit (since we don't know who falls into the 1%).

Basically, the law is being houseruled all the time, in almost every case. Legal systems that don't do that become tools for tyranny pretty quick.

Uh, explain how legal systems that DO do that don't become tools for tyranny...because if you can apply the law differently whenever you want, you don't have rule of law. You have an oligarchy of guys in black robes.

[PoliteNewb]

This is exactly the same as I said to Sashi...you don't punish people or decide law on what people MIGHT do. You punish people for what they have done. The idea that you should restrict 99% of the populace in their actions because of what the 1% might do is fucked up.

I'm going to play Devil's Advocate here. There are cases where the severity of the crime is in fact based on what people might do. A good case is DWI laws. Being intoxcicated is not in and of itself a crime. Driving while intoxcicated is a major crime because there is a significant chance you might do something while driving that car in that state and wind up seriously hurting or killing someone. The laws of reckless endangerment have a similiar notions of what might happen. "Reckless endangerment is a crime consisting of acts that create a substantial risk of serious physical injury to another person."

And I'm going to argue that DWI laws are in fact bad law...since they punish based on an arbitrary measure, and not by what the guy was doing.

Example? Two guys have some beers and both drive home, in separate cars. One guy drives like an asshole and goes 60 in a 35, gets pulled over, and gets cited for speeding...but he blows less than .08 on the breathalyzer. They cite him for speeding, but he doesn't get hit with the DWI/DUI.
The other guy drives safe and obeys most laws, but goes 38 in a 35, gets pulled over...and blows .081, just over the legal limit, on the breathalyzer. He gets hit with a severe penalty for the DWI, despite the fact that he was driving safer than the other guy.

We already have laws for people who recklessly endanger others through their driving...it's called reckless driving. Punish people for actions that are, as you said, creating a substantial risk of serious harm to others...but where that risk is immediate and demonstrable.

http://reason.com/archives/2010/10/11/a ... iving-laws

http://reason.com/blog/2011/01/10/more- ... runk-drivi

Laws should serve their stated purpose, of reducing the behavior the public deems harmful/illegal. If they don't really do this (but do, as in the case of many traffic laws, produce large amounts of revenue for the government), they should be scrutinized closely.

[Username17]

You completely misunderstood me. Murder is the example of a good law...we punish the 1% for their actions, and we DON'T punish the 99% who didn't murder people.

We actually do punish people who don't murder people. All the time.

Doing something that has a significant chance of killing someone is totally a crime, whether someone actually died as a result or not.

-Username17

[PoliteNewb]

You completely misunderstood me. Murder is the example of a good law...we punish the 1% for their actions, and we DON'T punish the 99% who didn't murder people.

We actually do punish people who don't murder people. All the time.

Doing something that has a significant chance of killing someone is totally a crime, whether someone actually died as a result or not.

-Username17

Okay, I edited to avoid this nitpicking. Happy?

The point is that the chance of killing someone must be significant...not "this might possibly happen, and we want to reduce that possibility from 2% to 1%".

[Username17]

Okay, I edited to avoid this nitpicking. Happy?

The point is that the chance of killing someone must be significant...not "this might possibly happen, and we want to reduce that possibility from 2% to 1%".

What the fuck? A 2% chance of someone dying is fucking insanely high. People don't run a 2% chance of death from having a bullet shot at them.

Your crazy tirades about how people should be allowed to drive drunk and shout "Fire!" in crowded theaters are crazy. Stop being crazy. And really stop trying to back your crazy up with bullshit statistics you pulled out of your ass. It makes your crazy arguments also stupid.

-Username17

[Sashi]

But you do need to wait for someone to actually shoot at people. You can't simply say, "we want to make handguns illegal, because someone might stick one in their pants and shoot a police officer, or worse yet maybe some schoolkids because THINK OF THE CHILDREN". But people seriously do say shit like that all the time, even though it's ridiculous, and unconstitutional.

My point was that Frank's point was a non-point. Of course you don't have a right to kill people through your actions. That has fuck-all to do with freedom of speech, as an ideal. It has to do with what you DO with your freedom of speech, or freedom of the press, or freedom of religion, or freedom to bear arms.

Pull your head out of your ass. Until the government implants the V-chip in everyone's head at birth there is no way to ban someone from saying things. Which is the equivalent of outright banning guns.

What we're talking about is that the first amendment doesn't protect you from being punished for the intent of what you say, even if what you intend hasn't come to pass. If you put "works great as a sugar substitute" on a can of rat poison you will be charged with something on the murder spectrum (probably reckless endangerment). "Free speech" doesn't protect you from prosecution until someone actually puts it in their coffee and dies any more than "free speech" lets you shoot bullets at people with impunity until you actually hit.

[RobbyPants]

The point is that the chance of killing someone must be significant...not "this might possibly happen, and we want to reduce that possibility from 2% to 1%".

Well, once you multiply that out by all the instances of the crime happening in the first place, that 1% drop has a net effect of saving a lot of lives. Real, actual, living people.

[Orca]

Example? Two guys have some beers and both drive home, in separate cars. One guy drives like an asshole and goes 60 in a 35, gets pulled over, and gets cited for speeding...but he blows less than .08 on the breathalyzer. They cite him for speeding, but he doesn't get hit with the DWI/DUI.
The other guy drives safe and obeys most laws, but goes 38 in a 35, gets pulled over...and blows .081, just over the legal limit, on the breathalyzer. He gets hit with a severe penalty for the DWI, despite the fact that he was driving safer than the other guy.

We already have laws for people who recklessly endanger others through their driving...it's called reckless driving. Punish people for actions that are, as you said, creating a substantial risk of serious harm to others...but where that risk is immediate and demonstrable.

Even if they're driving safely, a drunk driver makes the roads more dangerous for others, because his or her reactions are slower and stupider. People make mistakes, and whether those mistakes are made by the drunk driver or someone else on the same road, the drunk driver is less likely to respond appropriately and in time.

It's certainly demonstrable. Whether it's immediate depends on your definition I guess.

[Zinegata]

This why slavery was upheld in the courts.... it was legal at the time.

Eh, Keegan in The American Civil War says it's not so clear-cut.

Also, it's kinda hard to argue that the Dred Scott decision wasn't political when the Supreme Court was dominated by Southern justices and it ruled so decisively in favor of slavery. Recent evidence shows that President Buchanan may have even actively bribed or pressured one of the non-Southern judges - because the decision would essentially overturn the ton of Free/Slave laws that had been passed in the previous years.

Moreover, when the ruling states that African Americans (free or slave) can never be American citizens - when that was not even part of the case at all (as pithily summarized by the dissent - which points out that even Southern states acknowledge free blacks as citizens) - it's kinda hard to call it anything but the Supreme Court playing politics.

It's telling that one of the two dissenters actually resigned in protest from the Supreme Court over this issue - the ONLY Supreme Court justice to ever resign over a court decision. It was just that fucked up.

Ultimately, it took a Civil War, 600,000 dead, and a constitutional amendment to overrule this case. Not exactly the most ideal result.

[tzor]

Ultimately, it took a Civil War, 600,000 dead, and a constitutional amendment to overrule this case. Not exactly the most ideal result.

Actually, the Civil War delayed the process, but the result was better. Upon his election Lincoln had already proposed an amendment to the Constitution with strong Federalist overtones that would have prohibited the Federal government from making any regulations or decisions one way or the other on the slave issue leaving it up to the state level to decide. (Nothing on citizenship but remember Lincoln did not want slavery in the new states because he didn't want Blacks in the new states. He was constantly looking for a way to ship freed slaves back to Africa.)

The Civil War was triggered as a result of the industrial north wanting to enforce massive import tarriff laws on the agricultural south which hurt the agricultural states more than it hurt the industrial states. The slavery issue also helped to polarize the states in terms of agriculture / industry because slavery helped support the former. This wasn't the first time this was attempted, but it was the first time when the actinv president didn't stand down when faced with a massive attempt to nullify federal tarriff laws on the state level.

[angelfromanotherpin]

Declaration of causes of secession. The word 'tariff' occurs zero times.

[Count Arioch the 28th]

The civil was happened because southerners are willing to kill and die to continue obsolete and self-destructive economic processes hundreds of years after the rest of the world has abandoned them.

The "Tariff" argument is something that someone made up out of whole cloth. There is no historical basis to that fact.

[CatharzGodfoot]

The civil was happened because southerners are willing to kill and die to continue obsolete and self-destructive economic processes hundreds of years after the rest of the world has abandoned them.

Brace yourself...
20 years, it'll happen.

[Zinegata]

Tzor, Keegan's entire book never mentions external tariffs as a cause of the civil war. What the hell are you smoking?

Keegan rightly points out that the major issue of the Civil War was, from start to finish, slavery. The majority of the English-speaking world wanted it abolished on religious grounds. That's why "slavery is not allowed here" is an actual clause in many state constitutions in the North.

Keegan also points out that what the South claims as "tariffs" was actually them whining about how the North is going to take their property away - but this "property" was actually the human slaves that the rich plantation owners "owned". And these slaves - despite having no right to vote - counted in terms of representation for the purpose of electing Congressmen. Which is a grossly unfair cheating method that gave the South disproportionately more representation in the early days of the US.

The Civil War really came to a head because of the following factors:

1) The vast majority of the English-speaking world (INCLUDING large tracts of the South) wanted to abolish slavery on religious grounds. It really started in the 1800s, when the British got serious about stopping the slave trade.

2) A minority of large slave-owners wanted to maintain their wealth - much of it rested on the monetary value of slaves - and spread propaganda to convince poor Southerners that the only way to get rich was to get slaves. This was ironically helped by the British killing off the slave trade, as it drove up the price of slaves (leading to the incredible fact that the South was actually, in terms of per-capita wealth, richer than the North. However, this was an entirely illusory wealth - as demonstrated by how the Norths imply buried the South with "Send in the next wave!" tactics because they simply had that much more guns)

3) While a minority in the North (abolitionists) wanted wholesale abolition of slavery, most Northerners actually didn't care and were actually content with letting the South keep their slaves. The result was the Free/Slave State laws and compromises. States were free to determine if they allowed slavery or not - particularly important for the vast new territories the US acquired in the Mexican War and Louisiana Purchase.

4) The North's population BOOMs. As a result, the North has many more guys in Congress, because Congressmen are elected based on population. The South gets paranoid and thinks that the North will soon have enough Congressmen to get a 2/3s majority to push for an amendment banning slavery forever.

5) The South therefore maintains that there should be an equal number of Free and Slave states. Because while the number of Congressmen is determined by the size of the population, every state just gets 2 Senators regardless of population size. That way, they'll always control half of the Senate and prevent any constitutional amendments. And they whine mightily whenever a non-Southern president is elected.

6) The Dredd Scott case happens. Idiot Southern judges fear that having half of the Senate in their pocket isn't enough. Their ruling overturns the Free/Slave State laws, and says African-Americans can NEVER be American citizens - forever. Despite the fact that there are, in fact, free African-Americans with full citizenship status even in the South.

7) The North says "fuck it" and forms the Republican party. They elect Lincoln. Lincoln puts his foot down and says that he won't allow slavery in the Territories. Which means that every time a new state enters the Union, it is virtually guaranteed to be a "Free" state and will wipe out the South's grip on the Senate.

8) Secession. Fort Sumter. Bull Run. Shiloh. Antietam. Gettysburg. Vicksburg. The Wilderness. Richmond. 600,000 dead. Major, major fuck up.

[tzor]

Tzor, Keegan's entire book never mentions external tariffs as a cause of the civil war. What the hell are you smoking?

Unfortunately I don't have the book with me, as I appear to have given it out to a friend. My source is not a Lincoln appologist, but “Lincoln Unmasked: What You’re Not Supposed to Know About Dishonest Abe” by Thomas J. DiLorenzo. Crown Forum, 2006. 223 pgs. A review can be found here.

DiLorenzo, like Spooner, makes skilled use of quotations from Lincoln to support his analysis of Lincoln’s policies. “In his first inaugural address Lincoln shockingly threw down the gauntlet over the tariff issue, literally threatening the invasion of any state that failed to collect the newly doubled tariff … ‘[T]here needs to be no bloodshed or violence, and there shall be none unless it is forced upon the national authority.’ What was he [Lincoln] talking about? What might ignite bloodshed and violence? Failure to collect the tariff, that’s what … he further stated that it was his duty ‘to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion…’ In other words, Pay Up or Die” (p. 126).

Read the book.