> The ruling means that for the first time much of eastern Oklahoma is legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city.
Ok, thanks. All the northern plains groups do the quantum. I suppose the Cherokee have a pretty scary history so that makes sense. The difference between the two tribes in their statement isn't because of blood, its distance to a major city.
Just like it does for any other foreign citizenship.
Getting your tribe you just started recognized without any of the treaties in place is about the same level of effort as getting your new country recognized. I don't see TSA accepting Sealand passports.
No bs: I've had TSA refuse to accept my US passport card for domestic travel. He claimed there is no such thing. Twenty years down the line and we need some basic training...
So could a tribe welcome every single person who asks to become a tribesman? Does the government just accept whatever the tribe says? Would the government then be required to apply all the same rules and exclusions of law for such new members of the tribe?
So the answer is yes? This seems like a potential business opportunity for any tribe that was so inclined. They could bestow favourable tax status on anyone who wanted to go down that path.
There are limits. Allergan tried some shenanigans with a drug patent[1].
Re: taxes, the US government will make you pay all your taxes. If you pay taxes to a foreign govt then you can get a waiver for what you paid but if the tribe gives you a good deal the US govt will still demand the rest.
> Re: taxes, the US government will make you pay all your taxes. If you pay taxes to a foreign govt then you can get a waiver for what you paid but if the tribe gives you a good deal the US govt will still demand the rest.
That's the rule for US citizens. You would no longer be a US citizen. Presumably the rules would be exactly the same as they are for current tribe members.
Assuming you are planning to work in the US your income will still be taxed. And based on the rules from the Eduardo Saverin case you won't be able to escape taxes on what you earned before you left.
Yeah, you're right. In Canada, "status indians" get a tax exempt card to avoid sales tax at least. I didn't realize that in the US all American Natives are actually considered US citizens and are taxed federally just like everyone else. Only the tribe itself is tax exempt.
The Allergan example is interesting, super ballsy and got struck down.
It had to do with patent challenges through inter partie reviews (IPR) Basically Allergan transferred the patents to the tribe and said “they are sovereign and thus can’t be challenged through IPR”.
Reservations vary from quite well off (I personally knew a guy who basically had a few hundred thousand in trust from his band when he turned 18 - money from resource extraction on tribal territory) to reservations that resemble shanty towns in developing countries.
Can you give an example of a country recognizing some but not all citizenship decisions of another country?
Like I think the US would respect a Taiwanese citizen presenting a PRC passport for instance. The PRC considers all RoC citizens to be PRC citizens and will fill out the relevant documentation for them.
For non-natives not really. For natives, it depends on the agreements. This isn't really a traditional reservation situation, since the tribes really are not going to have the traditional governance over the land. For example, the cops are not going to get replaced by BIA or Tribal police.
There are other places that are technically on tribal land, and that hasn't allowed the tribe to government them. The city and state is not going to cede governance on non-members to the tribe. Its going to end up being an agreement between the state and the tribe.
Tribal governments only have criminal jurisdiction over crimes committed by Native Americans (an enrolled member of the tribe, or an enrolled member of some other federally recognised tribe). If the perpetrator is not Native American, the tribal government and courts cannot deal with the case, only local/state/federal courts and authorities can. (There is an exception to this rule, created by Congress, that domestic violence crimes committed by a non-native against their Native American spouse or partner can be dealt with through the tribal legal system.)
Civil legal jurisdiction over non-native individuals is somewhat broader, but still subject to various complex legal limits.
Don't know if you'd qualify it as a "major" city, but over 10% of Palm Springs CA is on an Indian reservation. For interesting historical reasons, though, the reservation is basically shaped like a checkerboard, where every other 640-acre square is reservation land. This obviously has huge implications on real estate - none of the reservation land is sold, just leased, and there were some recent cases where the tribe made the tenants leave after their (like 50 year or so) lease was up.
Google "palm springs indian reservation map" and it will show you the checkerboard.
That seems like an insane way to divvy up land. My first instinct was that it was done that way to make the land effectively unusable as tribal land, just because that's how the government tends to roll in these cases
Correct. It was a policy to encourage Native Americans to move to the agricultural model used by European Americans, as well as incorporate socially. It was relatively easy for a white American farmer to set up a farm in the state administered squares, but it was relatively difficult for Native Americans to roam nomadically- it essentially reduced the density of available foodstuffs in the checkerboard by half. The presumption was that Native Americans would/should start farming and adopt American social and economic norms.
Another somewhat common practice was splitting up reservations into homestead sized blocks and assigning each block to an individual Native American adult male in traditional common law property ownership ways, which didn't map to any Native American social/economic norm.
There was a lot of effort put forth by the US government after the Reconstruction to coerce Native Americans to act like white Americans. Which was bizarre considering citizenship wasn't fixed until 1924. You would have thought they would have led with that.
> You would have thought they would have led with that.
It's actually very rational, cynically speaking: you don't want to extend the franchise until you're sure that the new guys will "vote the right way", so to speak.
Same is true of Green Bay, WI. About 15% of the city intersects with the Oneida Nation reservation. While also not a "major" city, it is over twice the size of Palm Springs.
Large parts of the City of Tacoma and surrounding cities fall inside the Pyuallup Indian Reservation in Washington state. In fact, out of >40,000 people on the reservation, only 2500 are members of the tribe.
This is a terrible article, it just cites the facts of the decision, teases the implication (OMG half of OK!) and explains nothing. Here's a review article about the same case from a while back which does a better job: https://www.washingtonpost.com/outlook/2018/11/28/half-land-...
The tl;dr is that, yes, indeed, half of Oklahoma is part of land reserved for the Creek in a 1833 treaty. And almost two centuries of subsequent jurisprudence and state development has (unsurprisingly) completely ignored that with effectively no legal basis. Neither Congress nor the state of Oklahoma has ever lifted a finger to try to make this right.
Basically, this is the Supreme Court saying that enough is enough, this can't go on, and telling the relevant governments to get their shit together and figure this out.
So if it's not part of OK, how does that impact OK from a representation in Congress, electoral college, e-Rate/federal funding perspective.
All of those people are no longer part of the state?
States and reservations are orthogonal concepts. This has nothing to do with "taking land away from" a state, it's about which legal authority has jurisdiction within the borders. People on reservations still vote in their relevant state elections.
Over native americans on tribal land. The state still has authority over everyone else. And the tribal police don't have authority over them. It's convoluted.
If we are going to truly treat this 1833 treaty as legally valid, does that mean that one party is entitled to compensation for 187 years of damages? Or is it more likely that we will somehow hand-wave it away and just find a way to retroactively undo the treaty?
> If we are going to truly treat this 1833 treaty as legally valid
If? SCOTUS literally just said it's valid. Today.
As far as what's going to happen, presumably the state legislature, congress, and the Tribal government(s) are going to come to some kind of deal. I'm no expert. I'm just reacting to the vaguely racist paranoia in the headline that has people freaking out that they'll suddenly be Ruled by Indians.
They are Amendments that enshrine rights and limit the Federal Government. Amendments take more than a simple majority to pass, which is all a law takes.
Ah, yes. I see. There is no doubt that the Federal Government ignores a number of Federal laws. More importantly, I believe, they ignore the US Constitution and Amendments.
I was thinking the same thing, if what the court was saying was that the land has always been a reservation, then, uh, get ready for the mother of all tax refunds.
Court decisions in the US (As in any other country in the world) are made in the context of the current social climate.
The current American social climate is not ready, willing, or interested in meaningful reparations. I doubt the tribe will be successful in suing for any damages.
You "sign up" with the sovereign tribal governments, just like any other nation. EU citizenship is worth a lot to many people, but they've still managed to find a system that doesn't include anyone with "some European blood".
Every tribe can determine their own criteria, and while some do consider how much "Indian blood" you have, that seems to be mostly because the US government heavily promoted the idea 100 years ago: https://chicago.suntimes.com/2018/10/20/18426433/warren-ance...
"Indians" in the sense you're using are not an actual thing. To my understanding, if you want to be a member of the Muscogee Nation, then you need to show legal proof of a bloodline going back to at least one specific person on the Dawes Roll's list of Creek members.
There was already an incentive - tribes running casinos had folks try to force their way in to get a cut. It didn't work; tribes get to manage their membership, and have historically been quite picky about how they do it.
Native americans do pay the same federal income tax as everyone else. Tribes don't pay federal tax. If you live on a reservation, you generally don't pay state income tax. It is kinda complicated.
If you believe you are a member of a tribe, contact them. Each tribe has procedures for determining membership as well as the rules, such as distance, in order to obtain benefit.
You can't sign up. I know someone who is part (unknown tribe) , but her grandpa didn't Regiser with the tribe and she can't so she is fully American to the law. Some distant cousins of hers with less generic heritage are members of the tribe. There are advantages to being part of a tribe, but many have decided they are Americans and not bothered joining for reasons of their own.
I don't think there's a consensus on that. Regarding words that some persons find deeply offensive:
- Some readers feel that using such words should be avoided simply because it's emotionally hurtful to certain individuals. Or because it reinforces beliefs they find abhorrent. Or for the pragmatic reason that it tends to end constructive discussion.
- Other readers feel that having policies against using such words does more harm than good, and stifles free and honest discussion. And coddles individuals who are too easily offended, when they should in fact use it as an opportunity to mature.
I think HN's audience skews more towards that first group. I'm sure other forums exist that skew the other way.
From long observation: no, one thing HN is remarkably bad at, even compared to the rest of the web(!), is taking context into account. Usually that kind of thing is deliberate trolling when it happens elsewhere, but here I can never tell. It seems so sincere.
It's pretty clear to me that it was sarcastic, but sarcasm reads really badly on the Internet. In open forums, it's best avoided -- there are just too many ways for it to go wrong. (Especially when not everybody is a native speaker, which makes sarcasm even harder to recognize.)
Side note - as a part 'native' I wish that term you used would come back. Indian is now ambiguous and First Nations and Native American sound so stupid.
However, I think your comment would have been more impactful if you coolly made your point and linked to the WaPo article for further reading instead of using that inflammatory tone and language.
> McGirt, 71, has served more than two decades in prison after being convicted in 1997 in Wagoner County in eastern Oklahoma of rape, lewd molestation and forcible sodomy of a 4-year-old girl. McGirt, who did not contest his guilt in the case before the justices, had appealed a 2019 ruling by a state appeals court in favor of Oklahoma.
The crime part seems largely insignificant to this ruling. It was mostly just a proxy for a larger question at hand of who should have handled his case.
It's unlikely this guy will suddenly go free given his admission of guilt.
I didn't read this article as saying that he had admitted guilt. I read it as saying that for purposes of this case, he didn't contest his guilt. That is, the basis of this case is not a claim that he is innocent; it's a claim that the wrong court convicted him.
If I missed something, feel free to point it out...
Honestly after all the Native Americans went through, give them the whole state at least. People in the United States speak and reflect often about the atrocities of slavery. We need to equally reflect on and remember the atrocities against Native Americans.
This is correct. People treat native Americans as some sort of monolithic bloc when they were anything but. The tribes themselves had many warring feuds going back centuries and developed competing alliances with imperial forces when they arrived, some allying with the French, others with the British or Spanish.
Giving the Florida Seminoles territory in Oklahoma (or giving land to an Oklahoma tribe and calling that a ceding to Seminoles?) would be weird at best.
This is what Oklahoma was initially meant to be. There were even talks of having two Native American states in the united states, the other being Sequoia I think. Then the US renegged on those promises, land was given to railroad companies, and flooded colonists.
In many ways we're seeing the same thing with Tibet and China. It's horrific.
Oklahoma was originally all Indian territory, and reserved for future allotment of reservations. The western half of Oklahoma was (mostly) never assigned, and instead opened up to white settlers in a variety of land rushes, relegating Indian territory to the land already allotted to reservations in the eastern half.
That rump Indian territory applied to be a state as the Sequoyah, but it was turned down, so it was merged with Oklahoma territory to become the State of Oklahoma.
It's also disappointing how little has been done to close the racial wealth gap from the legacy of slavery and Jim Crow. It seems the gap hasn't changed much since the 1950s and 1960s and I don't see how it gets better short of a massive reparations package and investment in building up distressed communities.
I'd rather not. In the NorCal (Jefferson) reservations, the natives setup huge nets to catch fish, load them into refrigerated trucks, and sell the catch to San Francisco restaurants. It's devastating to the ecosystem. As with building casinos, or the Grand Canyon Skywalk, they tend to commercialize/exploit as much as they can when they are free from state laws.
They are sovereign. Neither you nor the state of California should impose your views on them. If anything, we should ask permission from them to be on California land.
Are all the other treaties going to be reviewed? What percentage of the USA would become reservation land if all the treaties were honored? If it was >50% would we still call them reservations?
I think this had more to do with the specifics of this specific land and how things played out legally. I'm not sure these circumstances apply anywhere else.
It seems that what they've ruled is not that the treaty must be honored, but that only the federal government gets to decide not to honor it. Absent a specific decision to that effect, the treaty is still in force which limits the state's authority.
They're not saying the treaty must be honored. They're saying, unlike the many other treaties that were explicitly invalidated by laws passed, these ones were never really directly addressed so they must de facto still stand.
Also, no where near 50% of the US was ever granted in treaties. The vast majority was simply taken militarily without compromise.
Interesting implication that Tulsa is now inside of a reservation. Growing up I thought reservations were located on tiny parcels of land but in some western states that is not the case. In Arizona about 25% of the state is tribal land, with neighboring state New Mexico having about 10% of its land as reservations.
Can someone explain why America has reservations? From what I know, Native Indians had this land almost 2+ centuries ago. Why have a special, looks like an autonomous, region and special treatment to people that are a few generations down from when this happened?
Fair point. But I'd say that we kept them when we thought it was convenient to do so - when the land that it gave them wasn't land that we decided we wanted. So my point was, not that we never kept them, but that we should keep this one now, even if we decided it was inconvenient.
I'm not American, so don't know the topic in details. I have found this online:
"The main goals of Indian reservations were to bring Native Americans under U.S. government control, minimize conflict between Indians and settlers and encourage Native Americans to take on the ways of the white man." [1]
> Lands (in what is now Oklahoma) west of the Mississippi River to be conveyed to the Choctaw Nation. Lands east of the Mississippi River to be ceded and removal to begin in 1831 and end in 1833.
A treaty is a tool, it's 'how' to achieve something, not 'why' achieve something.
The reasons are as per my previous comments, and also as a tool to displace native population (in effect ethnic cleansing) and to grab land, as is for example the case of the treaty you mention.
Arguably, the treaties are not only "how" but also "why" us modern Americans, detached from the times in which those reservations were established, should uphold them, as they are lawful.
We could certainly look at why the treaties were signed, but the original comment basically asked why we, modernly, should care.
The treaties, as legal instruments, partly explain why reservations still exist, yes, but a treaty only survives if it isn't an impediment. I think it's key to understand why they were created in the first place because that also explains why they still exist: IMHO they still serve their purpose.
I think like most things, reservations weren't a solution to all things all native peoples for all time. It was more of a point in time act for specific reasons.
In this case the US was engaged in very specific legal deals with these groups. Reservations grew out of that process.
These rights existing because the US government signed treaties with independent foreign nations. Those treaties are valid law until the Congress withdraws from them.
Did the US government ever acknowledge them as independent foreign nations? The War of Independence was partly fought to get away from the British proclamation of 1763 that said you couldn't settle west of the Appalachians without a treaty.
Oklahoma was part of the Louisiana purchase, the US considered it their land for that reason.
The US signed treaties with the indigeneous population in an attempt to secure peace, not out of any sort of acknowledgement that they had to.
>The US signed treaties with the indigeneous population
and by doing so, acknowledged that those indigenous populations were soveriegn nations. It doesn't matter why they signed those treaties, the only thing that matters is that they did.
You don't get to cancel a treaty just because the other party used to have leverage over you and doesn't anymore.
> Did the US government ever acknowledge them as independent foreign nations?
Yes. That's why we had to write treaties with them, to gain proper title to the land. Even if we treated those who signed the treaties as having more authority than they actually did, and if we treated the treaties as mere scraps of paper, those treaties were still seen as treaties with legitimate sovereign nations.
Because in many cases we signed legally binding treaties with what were sovereign people at the time (and ostensibly are today but in practice not actually). We have either used loopholes or outright reneged on the treaties to further take their land away. I don't know if the time passed is relevant, when we pass treaties and sign agreements in general they have to mean something if we intend to be a nation of laws.
As I understand it, it's not "special" status and more a result of the laws that were put into place when the land was "obtained" from Native Americans. Renegading on those treaties would be no different than the government repossessing your generations-owned land because "you shouldn't get special treatment because your great grandfather bought this land for $3".
It's complicated. Tribes, much like (capital S) States, are semi-sovereign, sovereign in some things but not in others. Much like States, reservations are still part of the United States.
The US government signed treaties (Legal documents) with Native American tribes. This decision rests on the fact those are, indeed, binding documents. Congress can explicitly modify these treaties, but that is an explicit legislative duty.
It really isn't that hard of a question to answer. If I legally own land, how far back in history should it go? Well, probably as far back as the entity that enforces legality says.
The court has never ruled the president can't unilaterally tear up treaties too though, so it may not require Congress. When Bush unilaterally ended the ballistic missile treaty the court refused to hear the case.
well stuff like the Royal Family of England and the entire system of capitalism sure seem to think wealth transfer should be maintained over numerous generations.
Why does this instance bother you so much? (I think I know why)
Most reservations are not great places to live. A google search shows there's lots of crime, depression, and poverty. I think these people should realize its difficult to live in relative isolation these days and move forward. Let them keep this land but don't attempt autonomous independence. Pick your source. An oversimplification: white-guilt. You're being downvoted because people assume this comment is racist when I think you're just asking for information.
You can literally say the same thing about say, Alabama. It's full of crime, depression and poverty. How about we let them keep their land, but remove their statehood?
It's contracts between nations (the US federal government and the the tribes). Native American tribes are numerous (the federal government recognized 550 distinct tribes when I last checked) and have agreements with the government that were to guarantee their sovereignty.
The US government was making treaties with Native American tribes as recently as 1871. One hundred and fifty years ago isn’t long at all. It’s two lifetimes. It’s recent enough for someone to have known someone who was alive then.
> The US government was making treaties with Native American tribes as recently as 1871.
Even later than that I think? The government was fighting Geronimo in the 1880s, and my understanding is there was some intermittent fighting as late as the 1920s. I'm not sure about treaties specifically though.
You own quite a bit of fenced-land and have built some dwellings on it, a main home, a couple outbuildings, a barn, etc... you and your family farm it, raise livestock, hunt, fish, etc... and live quite well off the land without ever needing to leave or venture beyond the fence.
One day you see some strangers outside your fence, looking quite haggard, and ill setting up a camp using nothing but the meager supplies left in their vehicles, and what looks to be parts of the vehicles themselves...
Feeling compassion you attempt to help them, you open your gate and land to them, your home even, providing food, additional shelter, and even teaching them some basic things about your land and how to harvest, hunt, fish and generally live off it...
Fast forward a couple centuries, and now your "guests" have double-crossed
you... taken all your land by force, persecuted your family while committing countless crimes including rapes, murders, and basically genocide on a continental scale.
In an act of "graciousness" during one of countless "treaties" you've been forced into accepting under duress - so that your entire family wasn't completely wiped from the face of the earth... you were "allowed" some small areas of undesireable land by your new masters where you be confined and kept out of the way without constantly needing to be harrased and supervised into submission... that was until those same people found out there was oil and other commodities buried underneath your newly constucted hovels... at which point they just pushed you into smaller and smaller areas, and took what they wanted from you and yours at-will anyway... I mean who could you complain to? their bought-and-paid for system of goverment and courts? the same that were used to persecute your family and steal your lands and heritage?
Now apparently some judges have decided to interpret the law as written, instead of posing for pictures in black gowns with pretty little wooden hammers...
This analogy falls apart some since there was never a concept of land ownership (to my knowledge) amongst the various North American tribes, so there wouldn't have been "fenced-land" semi-permanent dwellings to take over to begin with. Also, not all of them were welcoming in the romanticized way you present and many of them were very brutal to rival indigenous groups.
In short, it's a little more complicated than that. Certainly there was much evil committed towards indigenous peoples in many places, though. However, the Aztecs weren't very nice to their neighbors and the fact that they were betrayed by the Spanish seemed like an apt comeuppance for a group led by bloodthirsty warmongering maniacs.
Does anyone know the status of private land, not belonging to tribe members, now considered within the reservation? Can it be confiscated by the tribe?
Here is Washington state, sometimes tribal land is leased to non-natives for 99 years. Will definitely be interesting to see what happens, but it is quite possible that "property tax" could be moved over into a land leasing fee.
Around Lewiston, Idaho, the Nez Perce tribe has been buying up land as it comes onto the market. They're also doing land swaps with non-tribal land owners for other reasons - better wildlife acreage for better farming acreage, for instance.
[Not US lawyer, but] an option open to some common law courts is leaving the legal owner in place while declaring that the thing owned is for the benefit of someone else (i.e. a beneficial owner).
I have no idea, but a policy what would make sense to me would be to respect existing private property, though layer a "right of first refusal" for the indigenous nation to buy it back if it comes up for sale.
Why should the rights of stolen property be respected?
If I buy a TV that "fell off the truck", I wouldn't expect the manufacturer to buy it back from me. I wouldn't expect the manufacturer to buy it back from my grandkids either.
All land is stolen property, there are very few direct inheritance lines going back for more than a few hundred years. There are none that go back thousands.
It certainly makes sense for government/crown land to be given back to indigenous nations that hold title.
You could do the same thing I suggested albeit free for the Nation and the private landowner seller could be compensated by the government (which stole the land and resold it in the first place).
In many places, good faith sales are respected. Say someone bought a TV that "fell off a truck", but then after a year sells it to another person insisting it was legitimately acquired. The second buyer could be a legitimate owner given the they purchased the TV in good faith. On a side note, even if you did legitimately purchase the TV why would you expect the manufacturer to buy it back from you after it was used?
Regarding the realities of the situation in Oklahoma: as of this ruling non-natives on native land outnumber natives more than 4:1. If the government aimed to take or redistribute private property I would expect major unrest as a consequence.
To give an example from the german jurisdiction, if you buy a TV that fell off the truck, you are in posession of the TV but do not have ownership of it (however, you are not required to actually give the TV back, you can do what want with it).
If you sell that TV to a third party, ownership passes to that third party and the original owner looses all property rights on it. One of the few examples where ownership can pass from a party to another without the first party's consent (in neither express or requirement).
I don't have background other than reading the background included in the decision, but it seems that in late 1800s/early 1900s, the land was allotted into parcels with individual ownership by members of the Creek Nation, and after a time that ownership became freely conveyable to any person.
Conveying property to a non-member does not remove land from a reservation, and this ruling does not void any conveyances. Whoever owns the land, owns the land. This ruling just makes it clear that all of the land within the treaty boundaries is still a reservation. I don't know all of the implications this will have, but I imagine a lot of things done by the state of Oklahoma assuming they were operating within the state of Oklahoma may need to be reviewed, given that they were operating within the Creek Nation.
For example, can the state allow formation of counties and cities within the Creek Nation? What about if said counties and cities were formed inclusive of only land owned by non-members of the Creek Nation?
Of course, the court mentioned that Congress is free to stop honoring the treaty, the only requirement is that it must do it explicitly.
Land that is privately owned will not be affected. The tribes often manage large amounts of reservation land in trusts, but fee simple/patent land (land privately owned outright) is protected by the constitutions of the states and federal government. Reservations are managed by the federal government via the Bureau of Indian Affairs. However, the tribes can establish many zoning rules, but they can be successfully challenged by private owners.
Here is a recent significant case about this matter where the courts sided with the non-Indian private land owner regarding a permit he received from the county even though he refused to also go through the Reservation's own permit process: https://caselaw.findlaw.com/us-9th-circuit/1651530.html
Nothing drastic. The real consequence is going to be to the state criminal justice system, where and who it applies to. Federal laws will still apply.
Here's most of it:
"Tribe members who live within the boundaries are now set to become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts may be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling. "
Likely very little. There's about 20,000 people who report Native American as their ethnicity in Tulsa, and likely the number of tribal members is lower.
I suspect that Congress will consider repealing the Major Crimes Act with respect portions of Oklahoma. Congress has already done so for other reservations in several states. See 18 U.S.C. § 1162.
I had the pleasure of driving through and visiting Oklahoma a decade or so ago. Some people don't like the rural states, but it felt so serene out there. We stopped at a shaved ice place off of some random exit and just sat there on the hood staring out at the plains. There's not much out there but it felt so peaceful. It felt like home.
This is an "affirming the consequent" logical fallacy. My sentence says nothing about the virtue or vice of cities.
I'm responding to "Some people don't like the rural states". Almost no one dislikes rural states for their natural beauty. They dislike them for the people.
Whether that dislike is morally wrong, or whether they should also dislike urban areas is irrelevant to my claim. All I was observing is that the people are why some other people don't like rural areas.
I think making a blanket statement might be incorrect. I've heard a lot of people who dislike rural areas for their lack of people. That is to say, lack of amenities, entertainment, cultural events, etc that can only be had in a dense area with surplus people.
I'm not sure which reason is the majority, or if there even is a majority.
This has been my experience as well. I live in a city now, but I love the times I have spent traveling through or to rural areas. They have a bad reputation that is based on false notions of urban superiority and stereotypes that feel as baseless and unhinged as claims of other types of superiority (e.g. racial).
The reality is when you visit these rural places, talk to the people there, take part in their culture, take in the land...there is a lot these areas and those lifestyles have to offer. I was also surprised to find the people so charming, warm, and welcoming - and it dispelled my fears of expecting discrimination, which in retrospect I've only experienced in bigger American cities. It does feel comforting, raw, grounded, and yes like home.
> I come from Minneapolis, and before that I lived in Seattle and Boston — three of the bluest, most left-leaning cities in the United States. I was an urban woman and couldn’t imagine living anywhere other than a city. My husband concurred. Then our 28-year-old son died in late 2016.
> Suddenly the traffic and noise and confusion became too much. John and I took off on a year’s driving tour of gentler parts — both of us working from the road, a computer security consultant and a writer. We grew nearly silent in grief.
> We considered Asheville, N.C., and Santa Fe, N.M. But on a chilly, silver January day, we drove into the Ozarks of Northwest Arkansas. Though neither of us could put our finger on exactly why, this felt like our place. People back home were flummoxed: I heard them say a lot about white, rural Christians who reject outsiders and “cling to their guns.”
> But what city folk don’t know is how beautiful it is here, and by that I mean way more than you imagine. We’re surrounded by low mountains, bony shale bluffs, forest, shining lakes and mysterious twisting roads. The wide-open sky brings every bird formation and low-hanging planet into relief.
Please, visit! The Buffalo National River is one of the most amazing natural attractions in my neck of the woods. Nearby in Bentonville, Crystal Bridges Museum of American Art is the best world-class museum in the state, if not the region. I think we have some pretty famous art, if you’re into that kind of thing. Also in Bentonville is the corporate HQ of a little store which started in Arkansas, and kept growing, which you may have heard of: Walmart. A short trip from there takes you to Fayetteville, AR which is currently #4 in the nation for best places to live, according to U.S. News & World Report. Doesn’t hurt that the University of Arkansas is also in Fayetteville; my time on campus was longer ago every day, but the campus and its surrounding metro area is as vibrant as ever, and I hear good things about its Walton School of Business.
We have a legacy to bear as well, but I think we honor our mistakes and errors as well as our virtues. On that note, one of the projects I’m most proud of in NWA is our massive bike trails network that connects the Fayetteville-Springdale-Rogers-Bentonville-Bella Vista area. This area was on the route of the Trail of Tears; this section of paths is the Northwest Arkansas Heritage Trail, part of the NWA Razorback Regional Greenway.
As a native and resident, Arkansas has a history and a reputation, but it also has amazing strength of character, and people who care about each other and their community. There are folks from all over the world who call my state home, and I’m proud to welcome them all.
Except the KKK. They are the bane of my home state, and it is my wish that I live to see each and every one of every group’s members publicly repudiate their membership and their belief in the groups. /rant
I had a different feeling. It wasn't empty in the sense that the desert is, which is very pleasant and beautiful, but scarred with industrialized agriculture, and silos stretching out into the infinite surrounding. The fact that there was absolutely nothing at all as far as the eye can see, no mountain or woods, just field upon industrial field with no farm house or town in sight, felt extremely isolating and uncomfortable. A feeling of having no bearings, no difference in any direction; no idea where to run.
The small towns felt disturbing. Tulsa felt disturbing. The lack of minorities out in public was painfully glaring. It was all so very patriotic and dystopian. The unsettling overbearing flatness on the featureless terrain dominated my perspective of the area. Not for me, and I couldn't leave soon enough.
There's a big difference between Eastern Oklahoma and Western Oklahoma.
GP's description sounds like Eastern Oklahoma which is more similar in landscape and vegetation to places in Arkansas and Missouri like the Ozarks.
Your description sounds like Western Oklahoma. I lived there from age 12 to 20 and yes it's exactly as you describe, getting worse the farther West you go in the state. Dystopian agriculture.
Although Tulsa is east of OKC, I would put the dividing line between the East/West change in landscape around the Tulsa area.
My own experience: having had a good portion of my childhood (after immigration) in a Rocky Mountain West state, I moved to Chicago for school. The first time I came back to visit for Christmas, I was blown away by how white the area was, and that I had never noticed before! Suddenly all of the childhood struggles I had with people quietly judging me fell into place (little things: assuming promiscuity, passing me over for a leadership position for someone less qualified, etc). That Christmas, the only person of color I saw was the guy behind the grocery's store's sushi counter, who was - wait for it, Japanese. It left me deeply disturbed, excited to come back to Chicago and excited to leave that state permanently.
Why not everyone assimilate? It is no longer "United States" when we split states off for special treatment for minorities. These minorities will further regress and never get out of the poor living conditions. Reservations are one of the most impoverished regions in the US.
We should then probably go back to Genghis Khan times and challenge the whole Eurasia, Persian inlands and a bunch of other areas around the world. To me, it seems like looking back and expecting special treatment many centuries ago is a minority trump card and instead we should be focusing on giving better opportunities, improving communities and looking forward.
I wonder about that. Right now, the fact that the Nations don’t have direct representation in Congress (yes, I understand citizens can vote in the state the reservation resides in) makes them appear more like subjects of an Empire than as coequals in a Republic. I think a lot about how to improve this. I think a lot about how to truly reckon with genocide and yet coexist. If anyone has resources about how to improve this, let me know!
One solution I thought of in an alternative history universe where the US doesn't genocide Native Americans is a tricameral legislature, where the third house is effectively ethnically-based instead of geographically based.
Although given the actual histories of countries that do have strict ethnic quotas for allotting political power, I doubt it would work quite so well in practice.
Yeah... I think explicit ethnic quotas can be really problematic. but ethnic quotas would've been better than how things worked out (i.e. genocide), though.
(I should point out that tribal membership is more complicated than just genetic background, and that it varies from tribe to tribe. Continuity from the existing tribal governments at the time until today need not have been explicitly ethnic.)
They aren't really sovereign nations though, right? Like if a tribe decided to build a giant meth industrial complex or a nuclear weapon facility on their land, the US federal govt is going to shut that down ASAP.
It's a bit messy. The US defines them as "domestic dependent nations". You're correct that they couldn't do those things - Federal law has been deemed to apply to Native Americans in most scenarios, and treaties (often broken/disregarded) give and take certain rights.
In any event, a tribe trying to build a nuke would likely be in the same scenario Iraq and Iran find themselves in, regardless of law or treaty.
We tried the "assimilation" thing for awhile. It ended up as a system of child abuse, kidnapping, forced sterilizations, and theft. There's a pretty decent case to be made for it also having been cultural genocide.
I'd personally prefer that we not go back to that.
Native Americans had wars and conquered each other for millennia before white man came. It wasn't some unified utopia in the Americas like Pocahontas leads you to believe. It was a huge cycle of tribalism, conquering each other, and bloodshed.
So... because they were conquering each other first, a technologically superior entity isn't allowed to conquer them?
I mean if we're getting into it, "white man" basically genocided their whole population with disease. The Native Americans never did anything nearly so heinous.
I'm not sure I understand your comment. If the genocide happened due to diseases imported from the Old World, how is it "heinous"? It happened at a time where people had no clue what diseases and immune systems were.
Whether or not they knew they were transporting disease at the time really doesn't excuse the end result: mass genocide. And of course this doesn't authorize taking land.
It totally excuses it. Intent is key. If you have no clue what a disease, a virus, an immune system are I don't see how you can be called "heinous" for unknowingly and unwillingly spread diseases.
As for lands, I don't know, lands all over the world have been changing hands since human beings learnt how to walk, most of the time after violence/war. It happened in 1500 when the concept of "nation" didn't even exist and the only way to say that a land was yours was to be able to keep it.
Well, then China is responsible for mass genocide due to Covid-19 then. After all, whether or not they knew they were transporting disease to other countries 6 months back really doesn't excuse the end result.
But that happened in the 18th century though, by then of course, empirical observation had played its role and a few people tried to weaponize it. I'm pretty sure accidental contamination during the 2 preceding centuries had already caused a massive decline in population.
There was some parity in their conflicts, they had relative stability for thousands of years. The coming of Europeans was definitely a major disruption, to the amount of maybe 100M dead in a few years.
Of course back then Might made Right. Aren't we able to see a little further than that any more?
Wow, this response is projecting a whole lot onto my comment.
My only reply in turn is, no, I don’t believe an entity should be “allowed” (by whom?) to conquer a nation in violation with their agreement just because they happen to have different technological capabilities
I don't think it's a dumb question at all. A quick perusal of Wikipedia seems to imply it's a complex issue:
"In addition, because of past land allotments, leading to some sales to non–Native Americans, some reservations are severely fragmented, with each piece of tribal, individual, and privately held land being a separate enclave. This jumble of private and public real estate creates significant administrative, political, and legal difficulties." [1]
"The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other
times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.
The judgment of the Court of Criminal Appeals of Oklahoma is Reversed."
We never stopped the general concept of contracts being enforced — this is just a case of a majority in power choosing not to enforce them in one specific case.
What Gorsuch's opinion does directly imply is that the "promise" to the Creek can be revoked by Congress at any time, i.e. it's hardly a "promise" at all.
Literally nothing in the legal system is permanent for perpetuity. Even the constitution can be amended in any way. All laws, treaties, etc. can be undone with enough effort.
Not quite. It is, in theory, possible to pass an amendment to the constitution, that would prohibit further amendments to parts of it. Quite a few countries have such "immutable clauses" in their constitutions.
The court is highlighting that congress needs to be consistent. Make a willing refusal to original promise, otherwise keep said promise. The courts job is not to decide on the promise but to identify the congress as responsible for consistency with promises made.
Well, yes, but that's just a fact of legislation. There are no "promises"; there are just laws that are easy or hard to change. If we were to amend the constitution to set aside land for native peoples, then that's probably the closest we can get to a promise, as that's probably the hardest kind of law to change -- but it's still not a promise, because it can be changed.
Sure, Congressional legislation could take away that land. That would be a lousy thing for them to do. Unfortunately since I doubt Native American groups are a big enough voting bloc, the only thing that would stop Congress from doing that would be enough negative public opinion from people who are not Native American. Hopefully there are enough people of that sort.
The Russian Duma could revoke the sale of Alaska to the United States and declare that they still own it. What stops them from doing so? The fact that the US military would stop them from trying to repossess the land.
The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement. The US operates with them as it does with every one else, on the principle of "might makes right."
> The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement.
This is patently false, because the Supreme Court has ruled that the promise is enforceable.
> The US operates with them as it does with every one else, on the principle of "might makes right."
This is also completely false. Does the military answer to the President of the US because "might makes right"? Can Trump overpower any enlisted man in the military with a gun? The military obeys the Constitution because they swore an oath to do so, not because the generals have literal guns to their heads.
Culture and rule of law matter. The statement "might makes right" is a gross oversimplification that doesn't reflect our reality at all.
It’s a good question — if anything I’d think that a promise is revocable by definition. If there’s no trust involved it’s not so much a promise as...collateral, or something?
I mean, the only reason that Congress can revoke a promise to the Creek Indians is that they have a stronger military. It's not about justice, it's just about strength.
If and when the United States Treasury stops honoring bonds that it sells, then you'll have bigger problems than whether or not you get social security income.
I do applaud that thinking; I hope it sets a precedent that can be used more widely. I hope they apply it more widely to things they don't necessarily ideologically agree with. Civil society needs more honesty and dedication to keeping your word, even when that is painful. That might lead to people thinking more carefully about where they stand and what they say as well.
Amen. This isn't a nonsequitor, I swear: why can't freedom of religion be used to legalize drugs? And, why can't Indian reservations, especially, sell what they please?
> why can't freedom of religion be used to legalize drugs
This is exactly the sort of thing that the Satanic Temple (not to be confused with the Church of Satan, etc.) investigates and does activism about. Well worth donating to IMO!
And, again I think, reservations are exempt from state laws/taxes and to certain extent able to make/enforce their own laws/taxes but they still need to follow federal laws.
The only way to stop our neverending war on drugs is a Constitutional amendment that guarantees every American the right to consume anything they want for any reason. In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix - euthanasia will become something of a nuclear option that they'll want available as a last resort. An amendment that guarantees the right to consume any plant/drug/chemical/etc. will have a chance if it's bundled with a 'right to die with dignity', allowing elderly individuals a euthanasia option.
Within reason right? I'm hoping that 'the right to consume anything they want for any reason' wouldn't include those things that cause sudden violent behavior and inability to feel fear and pain.
I forget which particular drug does this, but a search brought me to meth and I found this article which says people feel 'invincible' and 'paranoid' and can't be stopped with non-lethal means.
PCP, dippers(cigarettes dipped in PCP liquid solution), loveboat (powdered PCP sprinkled on a weed blunt) is still a huge issue in urban US city's.
The effects vary per individual but the higher the dosage the more psychoactive effects are felt. I've seen a naked guy take on 8 DC cops....yes 8 police officers, and after being tased 3 times the guy finally went down.(first two attempts didn't take) But he was tossing grown 200-300lbs adult men like they were paper weights. The amount of force it took those officers to over come this one person on PCP was insane. Definitely not something you want to run into.
You need to have federal drug laws because the one thing the federal government is supposed to do is manage the borders and relationships with other countries. If you don't have federal drug laws then bringing drugs across the border stops being a crime and we could end up with the fiasco of drug lords that Mexico has where journalists get beheaded for even reporting on it.
Mexico only has drug lords because US drug laws fuel their black market.
If you are skeptical of this, there are academic papers on the topic. You could also examine the history books regarding the rise of organized crime there. (For that matter, the rise of organized crime in the US was largely fueled by the prohibition of alcohol as far as I understand it.)
I am confused about what you mean. First, the federal government clearly has authority over international commerce. Second, the price of drugs in legal markets would be much lower, which would likely reduce revenue for criminal gangs in foreign lands. Third, the U.S.-Mexico border is long and it's hard to enforce smuggling laws, anyway. And fourth, Americans are quite capable of producing drugs on their own, and even more so if they were legal.
Cigarette smuggling is a thing because regulated cigarettes are more expensive than unregulated cigarettes. Why would that be any different for other drugs?
Fortunately there is no drug that has any such innate effect. Care has to be taken when extrapolating meaning from crime statistics, especially when it comes to police. They lie and rely on bad science, like the idea of excited delirium: https://en.m.wikipedia.org/wiki/Excited_delirium
Meth is used to tread ADHD under the trade name Desoxyn. Alternatives include other amphetamines which exhibit substantially similar effects.
A significant portion of the population consumes amphetamines on a daily basis and manages not to go on crime sprees. Perhaps it isn't the drugs which are the problem?
Agreed regarding route - I didn't mean to imply that all patterns of use were equivalent. I was trying to illustrate that it isn't some bogeyman that will swallow you whole. The drug alone simply cannot explain the issues that are often attributed to it.
My point here is that many drugs have been demonized to a wholly unscientific degree and I often witness otherwise well educated and thoughtful people zealously perpetuating such myths without stopping to really think them through. IMO blaming bad behavior and even addiction on drugs is an easy out which avoids addressing the much more complicated underlying issues. Overdoses, abuse, addiction, and crime seem to me to be largely to blame on other systemic societal problems. As always, correlation does not imply causality.
Yes, I entirely agree about drugs being demonized. And I believe that people get to choose what drugs to use, and how to use them. But that also means that they're responsible for consequences.
Indeed, some drugs are so demonized that many who use them do get swallowed whole. Because it's what they expect, and part of the motivation.
And yet that significant portion of the population somehow manages not to descend into a life of lawlessness even though meth is incredibly easy to come by almost anywhere in the country.
I'm pointing out that it's absurd to attribute problematic behaviors to the mere consumption of drugs. We severely restrict freedoms in the name of a battle against symptoms rather than address underlying causes. Worse is that our waging of the battle itself is a vicious cycle, serving only to worsen the very same symptoms that it supposedly seeks to address.
It's been the standard military "go pill" for several decades. Maybe now superseded by modafinil. Modafinil is by no means as dramatic, but it's still great fun, and far easier on your teeth ;)
Edit: Actually, the progression in the US military was amphetamine to dextroamphetamine, and now also modafinil.
As someone who has had a modafinil prescription since 2002, you're greatly overselling it. Hardly that fun. It's positively mild in comparison to meth or pretty much all other recreational drugs. Modafinil and recreational drugs aren't even in the same boat.
It's doesn't get more fun with higher dosages. You're just going to end up more on edge. Modafinil works by blocking the neurotransmitter that promotes sleepiness. Most stimulants work by causing your brain to dump tons of the neurotransmitters that promote alertfulness. Different mechanisms.
Higher doses do further reduce the need for sleep, however. And while they don't put me on edge, they do increase the risk of saying and doing risky things. But maybe that's because I'm bipolar.
Are you sure? Modafinil isn't much fun. I mean, it's fun the same way antidepressants are if you're depressed, but it's the opposite of habit-forming and if you mix with alcohol or caffeine you only get the bad parts.
Huh? I always mix with caffeine, and have no problems. Also, it is "habit-forming". If I increase the dose to stay alert longer, and then taper down too abruptly, I get dazed. However, I suspect that you're right about alcohol. But that doesn't matter to me, because I've never been much into it. And THC is just fine with modafinil :)
Would you rather be on life support, incoherent, for years, because of the lack of a right to choose... Or be able to choose what quality of life below which you prefer to pass on and not endure constant indignity?
That seems to be a different problem from legalizing personal use of all drugs. Assisted suicide is a thing in countries with much stricter drug policies than "anything goes".
The parent wasn’t advocating for the use of drugs, they were saying we shouldn’t lock people up for doing drugs. Do you think we should lock up drug addicts?
My body, my choice. It's not about whether or not the substances are mind altering, or whether or not I am suicidal for a legitimate reason (unbearable pain, lack of quality of existence).
What needs to be done is to de criminalize these things. One of the primary causes of the expansion of police power has been the "War on Drugs".
"War on Nouns" is a stupid way to run a society. Using law enforcement as your first line intervention for mental health, substance use and other such problems is a stupid way to use your resources to provide for the common welfare.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
That would keep the pesky federal government out of our personal affairs.
Federal drug laws were upheld on the grounds that they are regulating interstate commerce ("regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;").
The idea that growing plants on your own land for your own consumption would some how fall under this legislative power is ridiculous. It's not "flexibility", it's fraud.
Sure, but then federal support of state projects gets tied to whatever the federal government wants the state to do. The state isn’t bound, but it’s political suicide to turn down money.
This is a powerful weapon that can be used for both good and bad.
This is why direct taxation (16th Amendment) was a mistake. It allows the federal government to take away the citizens' money first, and then give it back to the states, with conditions.
If the federal government had to collect from the states, then there would be more oversight and power for states to say "wait a minute, why are we giving you money and then begging to get it back".
In theory, the result could be the same. Congress could still pass spending bills and give the money over with conditions. But in practice I think states would be in a more powerful negotiating position.
The real mistake was to make Senators elected rather than appointed by the states as they originally were. Representation of the general population is the purpose of the House, the Senate was meant to represent the states in the federal government.
The biggest flaw when reasoning about government is overestimating how well democracy works as a method of solving problems.
If everyone agrees about the major stuff, and you just need to finally make a decision on what color to paint the bike shed, democracy is great. A decision gets made, enough people are happy, and you move on.
But when you have real differences, you need a way to protect minorities against large coalitions of voters. Even if you aren't in a minority today, shifting politics (and divide-and-conquer politicians) will ensure that you are in a minority soon enough.
And it's even worse when society is polarized, because the coalitions form too quickly and too strongly.
But limiting the power of the majority is hard. The Constituion is genius because they recognized that and divded the power so many different ways. The protection of political minorities is much more important than the small amount of additional abstract fairness you get with direct elections.
Have y'all forgotten the entire reason the 16th amendment was passed? It wasn't because of fairness, it was because the state legislatures couldn't agree on people to elect. And when they could there were concerns about corruption and seats being sold.
So let the seats be empty. That will make the constituents mad and they'll vote out the incumbents and replace them with somebody who will appoint Senators. Or they won't. People get the government they deserve.
And if there are "concerns about corruption" then investigate the corruption and put the perpetrators (if any) in prison.
And in the 4 years where the seats are empty? Or the year where the state can pass no state level legislation? (Both of those actually happened, hence the immense popular support by the states for adopting the 17th amendment)
Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.
> And in the 4 years where the seats are empty? Or the year where the state can pass no state level legislation?
But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.
The voters can vote for representatives who are willing to compromise and appoint a moderate, or they can vote for representatives who are willing to engage in brinkmanship and then get nothing, and either way they got what they voted for.
> Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.
...who then went to prison. Play stupid games, win stupid prizes.
> But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.
We see federal representatives rewarded for brinkmanship. What makes you think state level electorates would act differently? (And in fact I expect there's lots of examples of brinkmanship in state electorates as well, I just don't follow them closely).
A representation system that fails to represent is dysfunctional and should be changed. When the same system consistently fails to represent its constituency, for the same reason, across various constituencies at various times, you can no longer fault the people. The constituents should not be punished for being born into a dysfunctional system.
Don't place the founders on a pedestal. They made tons of mistakes. The 3/5ths compromise was terrible, but it was encoded into the constitution. We learned from it and improved. State managed senators, while less overtly awful, were still quite problematic. Celebrate that the constitution can be changed.
> So what if they do? It's what their constituents voted for. Who's to say brinkmanship is never an optimal strategy?
If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.
> So change it by voting for different state legislators.
They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.
> Just because something can be done doesn't make it a good idea.
This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.
> If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.
It's two different questions -- does the system do what the constituents want (possibly yes), and what do we as the present day constituents want? The answer to which is not, from what I can gather, the status quo.
> They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.
Technically they didn't. It was the then-appointed Senate who approved the amendment (and by and large without having been replaced with different people), and they only did so out of fear of rising populist sentiment and what would happen if there was a constitutional convention in that climate. So they were basically doing their job and moderating populist sentiment, but apparently the anti-populist safeguards weren't strong enough to constrain populist sentiment from weakening them even further in that way.
> This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.
Your argument was "celebrate that the constitution can be changed" as if any change is inherently good. But change can make things worse too. Before there was slavery there was not slavery.
Your main criticism also seems to be that the seats were going vacant, so the solution I would offer would be to hold a popular election but only if there has been no appointment within six months. Then the seat can't go vacant long but you're not, in the common case, taking away the seat of the states in the federal government.
It's strange to say this when you are proposing to take away their direct vote on the matter. If anything, the current system is what gives people the government they deserve, by having voted on it.
Or just have the legislatures vote. The two candidates with the higher number of votes get to represent that state. With some luck, every state will be represented by one Republican and one Democratic senator. That should help to remove some of the party politics out of the senate.
TL;DR: Just use range voting and put in the candidate with the highest rating. (Note that Senators' terms are staggered so there aren't two up from the same state at the same time, but if there were you could easily send the two with the highest ratings instead of the one.)
I'm not American, but if the Senate is meant to represent the states, then it makes sense to have them appointed by the states, or elected by the state legislatures (this is for example how the Dutch senate (Eerste Kamer) is elected, though it's still proportional to the population of the provinces, unlike the two per state no matter how big or small).
But if you want your country to be democratic and representing the people, then the people's representation (the House) should hold most of the power, and the representation of the states (the Senate) should only really be involved in states-related issues. For example, not being able to create laws, but only deciding whether an issue is a federal issue or a states issue.
Merely making senators appointed by states isn't going to fix all of the problems with the senate.
You missed the nuance of GP. If senators represent states, they should not be given the power to create laws about people, but instead only about the interactions between states, leaving laws about people up to the House.
This would make the Senate more akin to the Supreme Court, though empowered to craft legislation instead of just rule on existing issues.
Wow, this is the first time I have ever seen anyone other than me express this opinion.
I understand some of the reasons changes were made, look forward to reading the this thread!
My quick thoughts on the matter is that since the changes, people have stopped paying as much attention to local(State politics) and focus more on Federal politics.
Edit to add information to support my thoughts: Look at the disapproval rating for congress, around 64%. But a large majority are incumbents. The feeling I get when talking to people is that the Senator from state X is the worst but my Senator from state Y is perfect/has flaws but brings value to my state.
I am completely incapable of understanding this argument.
The only interests states have are the interests of their constituents. States don't need representation, their people do - because states don't have interests, people who live in them have interests.
It should be noted that the original ideal, at the time the national framework was drafted, was for the Senate to represent the interests of oligarchs, couched in the language of it serving as a representative of the interests of the states. In that respect, it's still doing a rather swell job.
> The only interests states have are the interests of their constituents.
So then it shouldn't matter, right? The constituents elect the state legislatures who represent their interests, one of those interests is having US Senators who represent their interests, so their elected representatives appoint those US Senators. If your theory is correct then this should have the exact same result as directly elected Senators, because the states don't have interests separate from those of their constituents.
But it isn't, because elected officials do have their own interests. So then the question is, which process produces Senators that represent their constituents better?
US Senators have a personal conflict of interest in expanding the scope of the federal government in excess of what's in the interest of their constituents, because the federal government is subject to their control, and they personally want to control more stuff. State legislatures have the opposite conflict -- they want more state control, for the same reasons.
If you have directly elected Senators, there is no check on that conflict of interest and federal scope expands without bound. If you have Senators appointed by the state legislatures, these conflicts more or less cancel out. The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest, and the result is closer to the true interest of the constituents.
Meanwhile the House is still directly elected, which is a countervailing check on the power of "oligarchs" or what have you, because a federal law has to pass both.
Thank you for explaining this point. I disagree with it, but I see your motivation for it.
> The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest
State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want, much like how the States Rights party only cares about states rights when those rights concern themselves with what their base wants.
So, I don't think you're going to get that kind of check and balance. What you're probably going to get is similar to my original thesis - that it shouldn't matter...
Except that it does.
If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused. The office would become:
1. A perfect reward for connected party insiders, who, compared to the status quo, don't even have to win an election.
2. That would not be accountable to the public.
3. And where the people the public can hold accountable (The people making the appointments) are two steps removed from their behaviour.
Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, what kind of blowback would the senators who made the appointment be subjected to?
They wouldn't be any. Just like how there's currently no blowback against Senate Republicans for the crazy train ride that Mitch McConnell takes them on. Everyone can shrug their shoulders, shirk responsibility, and blame the rest of the collective (preferably the guys holding safe seats) for the disastrous appointment.
Consider, also, all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power than executive bureaucrats currently do - where they couldn't even be overruled by the legislature - because they are the legislature.
> State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want.
Which is to say that they are interested in it at all other times, which is more than there is otherwise.
Meanwhile, what is it that you expect them to want from them? The federal government taxes their citizens (which they can do themselves) and then sends the money back with strings attached. What value to the state of the strings?
> If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused.
The vote should be public so there would be blowback against everyone voting in favor of it.
> Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, how will the careers of the senators that approved the appointment would be impacted by such an appointment?
This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.
> You've surely heard all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power, and you won't even have anyone to task for their behaviour.
They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem), and if they're really so bad then most state legislatures are elected every two years rather than every four for the POTUS so the backlash comes quicker, and the problems you're describing don't even sound that serious or different from ordinary politics:
> 1. A perfect reward for connected party inspiders.
Sounds a lot like getting to be the party's candidate in a safe district, and doesn't inherently imply anything good or bad about what kind of Senator they'll be.
> 2. That would not be accountable to the public
This is a feature. It gives a veto to a body that isn't directly subject to populist fervor.
> 3. And where the people the public can hold accountable are a step removed from that behaviour.
In other words they are still ultimately accountable to the public.
> Which is to say that they are interested in it at all other times, which is more than there is otherwise.
Politicians have agendas. Those agendas consist of things they want done. Nobody's agenda, (as we've seen from how the States Rights party actually behaves, when push comes to shove) actually consists of 'reduce federal power'. That's because 'reduce federal power' doesn't accomplish anything in particular. Nobody gets re-elected because they reduced federal power. People get re-elected for getting stuff done. 'Reduced federal power' does not actually tie into getting anything in particular done.
As such, it's occasionally a tool that you can use, for some particular goal, but is not an end in itself. (It may be an end in itself for you, but your viewpoint is not one that politicians do anything but pay lip service to, to get your vote.)
> The vote should be public so there would be blowback against everyone voting in favor of it.
Name one embarrassing senatorial appointment that resulted in serious blowback to the people voting for the appointment.
Just one.
You won't be able to - because political parties aren't ran by fools. They've made laundering unpopular blowback for group failures onto safe-district candidates into an art form.
> This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.
In practice, it has happened to cabinet appointments. And again, in practice, nobody who votes for an appointment actually gets blamed for a disastrous one, for three reasons.
1. The appointee is their own person - the people voted for him can't predict the future, and aren't actually micromanaging his behaviour. When he does something awful, it's not directly their fault.
2. The appointee is everyone's responsibility, which is to say, he's no-one's responsibility.
3. Blowback laundering, see above. Safe-district candidates actively take credit for controversial, or unpopular decisions, to shield the rest of their party.
> They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem),
The House has just as much way to control the bureaucrats, if it chose to. By doing their job - legislating. If they are shirking this responsibility, considering that, perhaps, it may actually be happy with the job the bureaucrats are doing?
It is mind-boggling that you recognize that the power of appointed, unelected individuals is a problem, but think that the solution is to increase the number of, and power of appointees, and also giving them legislative power.
Note that the best contemporary example of a functioning federal democracy with state-appointed federal legislators is Germany. There, the state premiers and some members of cabinet are members of the Bundesrat, the upper house of federal parliament.
As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.
Consequently, the very clear direction of power shift in Germany has been - much more so than in the English speaking federations - an increase in federal power. (Also, a more recent prohibition on state deficits even accelerated that trend. State governments became enthusiastic about trading a little power for some extra money.)
When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing. I think it would be better to redraw the map and then for the states to have powers that make sense. But I think that is about as likely as a Democrat and a Republican to agree on the color of the sky on a clear day.
> As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.
You already explained the reason this happens in Germany:
> the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house.
Solution: Don't put the same person in both houses.
> When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing.
State lines that run through the middle of metropolitan areas are the best kind, because they give people the greatest choice. If you don't like your state government and voting hasn't gone your way you don't even have to move across the country to change jurisdictions, only across the street.
Moving things to the federal level does the opposite. Things haven't gone your way? Too bad, there's nowhere to run.
The Premier of a German state is also the head of majority-party in the state legistlature. Also, they are sitting members of the state legistlature.
That being the case, state prime ministers have a huge amount of power and influence, directly through mandates and indirectly through party politics. And usually, they want to to retain the maximum amount independence for their states.
And as far as federal legislation is concerned, one state prime minister is not enough to pass, or trigger, anything by himself. For state legislation, they don't have to pass through the federal goernment anyway, holding the parliamentary majority anyway (minority governments are extremely rare in Germany).
"Democracy" and "the will of the people" are abstractions, and pretty crude ones, at that.
I'm not saying that we shouldn't have democracy, but we should acknowledge that it is far from perfect. As Churchill said, "Democracy is the worst form of government, except for all the others."
Democracy is also not a scale-free process. Very different dynamics play out in a democracy the size of a city versus a state versus the size of a nation.
It's hard to explain briefly, but basically all of these separations of powers are designed to avoid some of the worst aspects of democracy. They happen to look less "fair" in an abstract sense, but it's more important to have some practical safeguards than abstract fairness.
A lot of our most heated political battles are playing out at the federal level (and have been for a long time), and I think that's a consequence of the 16th and 17th Amendments. If some of these battles were playing out in the states, I think our society would be a lot less polarized.
I think that was the inevitable consequence of terms for Senators. It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later. State-appointed senators with fixed terms have little natural legitimacy; it is not a sustainable model.
If you want the senate to represent the states, you need the German system - there, the Bundesrat (Federal Council) has as its members the premier of the state (and, depending on the state's size, some number of ministers). Its members and balance can change whenever there is a state election (which are not tied, US style, to federal elections).
Now, while they will represent the interests of the state governments quite well, be aware of this - the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house. They can use their federal role to create an obligation for themselves as state ministers, and then tell state parliament "Oh, we have no choice; the federal government has said so. Please fall in line with this policy that I want and you do not want."
The paliamentary system is repugnant to the American sense of the separation of powers. But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant. This would multiply the problems above.
Perhaps having a recallable delegate who is effectively a member of the state cabinet without portfolio would be palatable; but still, such a delegate would be entirely at the mercy of the state governor (or it would work), and we then would still see the benefits to the state governor of creating legislative obligations that state congress still has to fulfil.
To me, it seems that the Australian senate does a good job of representing the people of each State. Since the interests of States can be said to be the interests of the people of each State (rather than the interests of the State governments) it therefore discharges its responsibilities adequately. The key here is in having many five or members per state elected at once using a proportional method like STV optimised for small electorate magnitudes. Since the majority of any state will be made up of a roughly equal number of blues and reds it encourages them to work together at the expense of the small number of extremists or against each other with centrists and sometimes fringe members. Constantly changing coalitions (per bill) mean negotiation skills become important. But how adaptable it is to a federation of 50 states - I don't know.
> It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later.
The purpose of the Senate isn't to represent the existing representatives in a state, it's to represent the interests of the state in the abstract. Having a red US Senator in a state with a blue Governor is no more a problem than having a red state legislature in a state with a blue Governor.
> But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant.
This is largely only true at the federal level and for a very specific reason. The federal government was not structured for the level of responsibility it has taken on as a result of the direct election of Senators removing the state veto on increasing federal scope.
In state governments you have an elected governor and legislature, but also elected school boards, treasurers, sheriffs etc. There are no elected positions in the Federal Department of Education, nor the Federal Reserve, nor the FBI. The constitution didn't contemplate that the federal government would grow to cover so many things, so they all fall under executive control. But the source of the problem isn't pushing too many things to the executive, it's pushing too many things to the federal government to begin with.
The only case where elections aren't accurate for this is if the state government is non democratic. The state is just a bunch of people -- representation of the state is covered by how many representatives are sent per state. To my knowledge, the general population of the colonies and so on don't get representation in the Senate, only people that live in states
If you didn't have a fairly strong federal government, the US would become like the EU, basically unable to enact change in any even slightly controversial topic.
Though I'm not necessarily disagreeing, eliminating direct taxation is more complex than just giving oversight to states. If a state can say, "no, not giving you money unless we get it back", it becomes a lot harder for the country to function. Money from Connecticut helps pay for numerous programs in other states. At a high-level, we like to say that states would make the right decisions, but would they? Or would Connecticut say they'd rather have the money to sustain their state better? Of course, is the federal government making the right decisions?
I don't think the alternative is voluntary donations by states to the federal government vs direct taxation of individuals, but compulsory contributions from the states to the federal government.
The reason it would have a different outcome is because in a debate between 51 people, the chair doesn't have that much more power than the individuals. The federal government might be agree to set contributions according to fixed dollar values that the states can watch inflate down to a more palatable value, or they might agree to ignore certain sources of wealth in their calculations.
Discussions and disagreements will take on a very different flavor compared to the discussions and disagreements between a third of a billion players.
It is not apparent to me why this should result in an end to regulation of drugs as this subthread seems to imply it should. States can be just as interested in preventing drug use as the federal government - even more interested.
The drug regulation question isn't theoretical. There's currently a difference of opinion between more than half of the states, compared to the Federal government, on whether or not to consider cannabis a illicit substance with no legitimate use.
I don't know that an end to regulation of all drugs is in order, but if a majority of states (which make up the Federal government) believe cannabis has legitimate use, why then, is it still Federally illegal?
Think about it this way: collecting taxes from states was a two-party relationship. The states were compelled to pay in this transaction, but it's still two parties on opposite sides of the table, and their are other topics to negotiate later. If the federal government were to play an obvious game of taking money and then giving it back with conditions, then states would have exerted their power in other transactions. For instance, with senators who were chosen by the state legislature (the same body paying the taxes). Additionally, the state is a stronger entity to fight back against this kind of abuse than an individual citizen.
Now, let's change the picture to directly-elected senators and direct taxation. Now, the money is collected directly from the citizens first, and then the government's relationship with the state is entirely different. Now, the state and the federal government are cooperating, and the sucker is the one not in the room: the citizen whose money is being passed around. The state just becomes a node in a hierarchy, rather than a formidable agent with its own powers and responsibilities.
It's actually very similar to negotiations with a public employees' union. The government and the union are "negotiating", but they are really on the same side of the table. The sucker is the citizen who's paying for it all, but isn't even in the room.
> At a high-level, we like to say that states would make the right decisions, but would they?
What magic method does the Federal government have to only make the right decision? The Federal government is just as likely to make the wrong decision as a given State. Probably more so, if a big government makes a mistake it is harder to correct than when a small government makes the mistake. And the effects are more far-reaching.
The Federal Government just makes decisions slower, that is by design. Sort of a brake effect. Look at Prohibition for example, some states enacted laws. Eventually the movement gained national ground and the amendment was passed. It took 13 years for it to be repealed.
I would posit that America has less of a pot culture then it did a drinking culture. The history reads similar. First states took up the banner of morality.
>In the West, the first state to include cannabis as a poison was California. The Poison Act was passed in 1907 and amended in 1909 and 1911, and in 1913 an amendatory act was made to make possession of "extracts, tinctures, or other narcotic preparations of hemp, or loco-weed, their preparations and compounds" a misdemeanor.[6] There is no evidence that the law was ever used or intended to restrict pharmaceutical cannabis; instead it was a legislative mistake, and in 1915 another revision placed cannabis under the same restriction as other poisons.[6] In 1914, one of the first cannabis drug raids in the nation occurred in the Mexican-American neighborhood of Sonoratown in Los Angeles, where police raided two "dream gardens" and confiscated a wagonload of cannabis.[19]
Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927);[20] Louisiana (1927); and Colorado (1929).[21] -Wikipedia https://en.wikipedia.org/wiki/Legal_history_of_marijuana_in_...
Now states are removing their laws and with an eventual push the Federal government will change their laws as well.
The interstate commerce clause made for a fine end run around the spirit of that bit in the end.
If we do ever manage to address the interstate commerce clause, we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).
> we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).
The simplest way to deal with that would be to have those bodies continue to exist and publish "suggested" rules, which all the states could then adopt wholesale if they don't want to be bothered to do anything different.
Or a state could do something different, if they wanted to, which is kind of the point.
That doesn't solve interagency problems. What do you do when someone is drugrunning on two sides of a border? Just run two completely independent investigations and hope that California agents aren't worried about Oklahoma agents getting the credit?
This is how the state health and labor departments work right now.
When the CDC recommends action for workplace safety in light of a strain E. Coli found in a crop grown in one state and sold in many, state health departments and state labor departments have full autonomy on how to handle the issue in their respective states.
I don’t really think that a lot of day to day functioning depends on FDA. FDA definitely has a lot to say about a lot of things, and, arguably, without it, some undesirable things would happen more often, but all in all, we would be mostly fine.
I don't have the time or energy to synthesize an exhaustive list of concerning examples on the spot. If the prospect of an under regulated food supply doesn't concern you I would strongly suggest reading "The Jungle" by Upton Sinclair. (Or for a lighthearted example, see: https://www.cbsnews.com/news/chemical-infused-watermelons-ex...)
Yeah, imagine having to negotiate the EULA of every single grocery item to check for “fitness for consumption” clauses, what a Libertarian dream would that be! Of course the Market will eventually average out the bad players, thanks to the compound effect of billions of Rational Choices... eventually we’ll also be dead as that John Maynard guy once said. Perhaps sooner rather than later in this scenario ;)
Funny how daring americans were flying planes for almost 20 years, no EULA needed, and planes didn't drop out of the skies at all.
If anything, the problem is that when there are no rules, some people (pilots) themselves were reckless and can endanger others. That is something to be solved by criminal courts, though.
There are few rational choices given the lack of current transparency and future information that hasn't happened yet. There is no Market without immediate consequences. Dole Foods often has salad recalls due to ppl getting sick with e coli... Are they really a bad actor? Or just a poor one that can do better? Do you have time to make your own rating of which company, manufacturing plant, farm it was supplied from? What's a credible dinner alternative given your context and available time and guests? A bad actor can last a long time.
How is universal healthcare for older people somehow relevant to whether or not they are entitled to consume substances or decide that they have reached a point where they no longer wish to live?
> In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix
I don't understand how we don't already have this, in the form of Roe v Wade. That decision revolves around the idea that a medical treatment is a private matter between a woman and her doctor. And if that's the case, I don't understand how the government can interfere with a doctor advising a patient to use, say, marijuana, or any given drug.
It's never made sense to my how the War on Drugs isn't unconstitutional. And your point about Roe v Wade is a good one. Indeed, Roe v Wade is fundamentally about the right to choose what to do with ones body.
> the right to consume anything they want for any reason
How about human flesh? Nuclear waste? Bombs? Bags of dangerous quantities of hard drugs [a la drug mule]? Endangered species?
Just like with free speech, "do anything you want for any reason" has the potential for abuse (both by a person to themselves and by other persons to other entities), and the majority of society is not comfortable with that. Sometimes we can be indoctrinated into tacitly accepting it after intense special interest lobbying, such as with handguns and cars. But there's probably no "greater good" aspect of being able to eat literally anything.
Nearly everything you've said involves directly harming another person, for which we already have agreed upon laws forbiding. Endangered species may not harm others, but we've agreed as a people that we care about the lives of other species at least enough to stop killing them before we've made them extinct.
In terms of being a drug mule, if drugs were decriminalized, drug mules wouldn't exist, and most drug cartel activity wouldn't either.
People are advocating to decriminalize and allow people to harm themselves if they want, because it's their body and their choice. It's sad that people want to harm themselves, but ultimately, we do a poor job of stopping people, and by attempting to stop them, we've done considerable harm to our society (war on drugs, propping up cartels, etc.)
> Nearly everything you've said involves directly harming another person, for which we already have agreed upon laws forbiding
Which would also eliminate euthanasia as an option. If the law currently forbids euthanasia, then an "eat anything you want" law would still be invalidated when it's used for euthanasia, just like it would be invalidated for the other examples.
> if drugs were decriminalized, drug mules wouldn't exist
Cigarettes are not inherently criminalized, yet illegally selling cigarettes in bulk across state lines continues to be a problem. Illegal gun running also exists here, even for guns that aren't outlawed in any state. If there are cigarette mules and gun mules, there will probably be drug mules.
> The only way to stop our neverending war on drugs is a Constitutional amendment that guarantees every American the right to consume anything they want for any reason.
I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs, the hard drugs (e.g. heroin) are dangerous and destroy people and should not be freely accessible to anyone, anywhere.
What some countries do instead is provide heroin (or methadone) to people but only in specific locations, where they're provided with a safe and clean environment and equipment to do their thing, and where they can get help with their addiction if they want.
What I'm saying is that a lot of drugs are genuinely dangerous and should not become generally available.
> I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs,
What harmless drugs? No drugs, not even the ones that are currently legal (well, especially not some of them, really) are harmless. Prohibition isn't a bad idea because the prohibited substances are harmless, but because prohibition isn't an efficient mechanism of mitigating the harms (in fact, it aggravates them.)
If the federal government merely abided by the constitution and ended all of its activity in relation to the use and trade of drugs, that would go a long way in reducing the intensity of the War on Drugs and giving states space to legalize it.
Each state can decide its own approach, which I think is the appropriate principle for governance.
That will also require removing seat belt and motorcycle helmet laws and probably many others meant to protect ourselves. The problem is few decisions ever affect only the one making the decision when families and society are involved.
Indian Reservations still have to abide by Federal Law (which the ruling today affirmed) and selling of 'drugs' is illegal at the Federal level. They can use them in a religious service, but they can't sell them.
There are churches that "sell" marajuana and sometime other drugs this way. It really depends on the location how much it is tolerated. In California before recreational it was mostly tolerated. In states without even medical I think it is usually busted quickly, but you know, results in a court case, maybe they are busted a few times, things are kinda ambiguous, and they sometimes hang around for a while. They often have a connection to Native Americans, often just like, a few people who are Native American involved in the organization spreading what may or may not actually be traditional beliefs.
They do seem to apply it selectively. Scalia was like "It maybe a good idea but it's against the consitution. If the people want it, elect congress to make an amendment/pass a new law".
Now it's like "Well, it's not strictly in the constitution, but we like the idea, so if we squint a bit we can probably make a tenous case for it."
>I hope they apply it more widely to things they don't necessarily ideologically agree with.
You mean like Roe v Wade? Under this ruling, if precedent doesn't matter, only correcting past injustices, Roe v Wade should be overturned immediately.
> Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law
And yet "adverse possession" allows my neighbor to keep a slice of my yard, because he build the fence shortly before I bought the house (while it was unoccupied!) and I assumed it was proper after I moved in, and now that I've had a survey done and realized his fence is 5' off target, it's too late because he officially owns it!
I understand the difference, but I feel like it would be more proper to say "Unlawful acts performed long ago, are hardly ever enough to amend the law."
What you're referencing is probably a "prescriptive easement" and is legal (depending on your jurisdiction).
If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!)
None of this is related, either legally or in spirit, with the sentence you cited. The cited statement refers to an unlawful act, over time, attempting to override the law. In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal. The entire point of this ruling is that congress never passed a similar law to make this sort of action legal.
I agree with you on the legal aspects, but the mind-bending bit is that the neighbor's actions -- at the time -- were not legal (because no, it is not legal to build structures on someone else's property without their permission), but because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status. Which, honestly, sounds completely bonkers to me.
> because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status
Yes, the point is there is a specific law that says this, and it's really not that unreasonable, since precise property boundaries are always ultimately conventional.
Property boundaries affect home value, though. The parent who brought this up bought a house with the understanding that he would have X square feet of land, but it turns out, due to this weird situation, he only has some Y (< X) square feet. Presumably he might have wanted to pay less for that.
The realtor will blame the title insurance firm and will be out of the picture. The title insurance firm will claim they did nothing wrong, and that it is the landowner's actions (or inactions) that have caused the landowner's losses.
Which in this case, it is; the owner sounds particularly upset, but as he tells it the fence was put up shortly before he bought the property. He has sat there for decades without ever having measured it up. Adverse possession takes a long time to come good. All advice about the purchase of property is always to get it surveyed.
And the owner had a few remedies. The easiest is to quickly grant a revocable right to put a fence there. This makes the possession not adverse (there is no trespass). That makes it temporary.
I understand the reason why someone might not trust the most local government (municipal, state, federal governments as appropriate) to manage the registry of landownership complete with dates, dimensions, notables features, and owners, but I find it really weird that problem of knowing exactly who owns what is effectively an orphan in the last resort.
If the statute of limitations for conversion has expired, you will no longer be able to recover either the chattel or its value from the converter. The analogy to adverse possession or easement by prescription in real property should be fairly obvious.
Sure, I'm not saying that it's reasonable to prosecute the neighbor for the prior act of building on someone else's land (though I'm not sure that's a crime; at worst I expect it'd be a form of trespassing, but would otherwise be a civil matter). I'm just noting the weirdness that the legal status of the property was changed through an initially illegal act.
But I guess on second thought maybe it's not that weird? Like if I buy stolen property from someone, and I have no idea that it's stolen, and the original owner comes along wanting it back, it's actually now legally mine, and I'm under no obligation to give it back.
But that's not exactly the same, because in this case the original owner has been harmed, but making the original owner whole would then harm me (an innocent bystander). In the case of the real property issue, "giving back" the land would only harm the person who "stole" it in the first place.
However! If the original "land thief" were to sell the property to someone else, then you're in the same situation. The new owner bought it in good faith, expecting the fenced-in area to truly belong to them, not knowing that the original property lines were drawn such that some of that property actually should belong to the neighbor. So then acknowledging the status quo means hurting the neighbor, but transferring the property back means hurting the new owner (an innocent bystander). At least in this case, the new owner could perhaps sue the old owner for misrepresenting the size of the land.
I think it's interesting that a debate about the impact of adverse possession upon the original land owner has resulted from a SCOTUS decision about a Treaty between the United States and an Indian nation.
On what basis was the rest of Oklahoma not "adversely possessed"?
Reservations aren't property of the tribe or nation, they are areas of federal jurisdiction under a Constitutional reserved power within which the tribe and federal government has certain jurisdictional rights concerning members of the tribe, and where the state is excluded from certain jurisdictional rights it would otherwise have over territory within the state.
That's again not accurate at all. If you buy stolen property & the original owner makes a claim to it within the statute of limitations, that property is returned to the original owner.
Anyway, as many others have noted, the problem isn't that the statute of limitations hadn't expired. What was actually happening was that the government was regularly breaking the current treaty that was in force. The ruling was that the government has to follow the law or change it but it can't just apply it however it wants.
As I understand it, there is a similar situation legally with regard to copyrights, trademarks, etc. If you don't enforce them, eventually, they are no longer considered valid. Note that IANAL and I haven't investigated this in depth.
I think the idea is that most people aren't computers processing laws as if they were code; most humans have to primarily go by what they see happening around them in order to decide what is ok. If they see lots of cars going down a road, eventually they assume that it is public property, even if they never check the public records to see if it is. Similarly with lots of other things.
But, crucially to the Supreme Court's majority decision, you have to have a law saying that this is so (for real estate or intellectual property or whatever), for it to be so, and Congress never did that.
True for trademarks since by definition it’s a claim on some unique usage of a word or mark. Not the case (anymore, as of 1976) for copyright, at least in the US.
Otherwise you could wake up and discover that a structure you built 30 years ago on land you thought was yours now isn't. The adverse possession law exists to prevent surprises like that.
I can understand this perspective, but that also means someone else's rights have been trampled over, even if long ago. What's needed is something that prevents this from even happening in the first place.
Reasonable, but shouldn't the real owner of the property be entitled to some sort of compensation regardless? That becomes problematic if you don't have the means to retroactively buy the land from your neighbor, but it doesn't seem fair to just acquire it, free of charge.
Prescriptive easement is not intended to apply to physical encroachment. It's intended to apply to right of way and ingress/egress issues. Otherwise, it would be an end-run around having to pay for the property.
I don't think that principle would apply in GP's case.
> If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it.
My jurisdiction does, of course, which is why I mentioned it.
> None of this has anything, either legally or in spirit, with the sentence you cited
I disagree, strongly.
I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".
Everyone acknowledges that the fence line was once illegal, in the same colloquial sense.
Yeah, you're right, the ruling in the linked article is different, and governs the creation or removal of actual laws. However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.
> That is criminal law, and about persecution. This is civil law. So there is no statute of limitations.
“prosecution”, but, no, civil law has statutes of limitations, too, in fact crimes without statutes of limitations are more common than civil wrongs without them.
>I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".
Excuse me? What on earth does legal mean other than specifically being "in compliance with the law"? There is nothing colloquial about it, that's quite literally the formal definition.
>However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.
This is not true at all. The whole basis for a prescriptive easement rests upon the fact that it wasn't forbidden. If you object to someone's use of your land, then their fence becomes illegal and is indeed forbidden. To acquire an easement, you need to prove that your use was not contentious, ie. specifically demonstrate that your usage did not contravene any prohibition.
> If you can't see the analogy, I recommend you just shrug and move on.
I recommend you take a moment to reflect on how obnoxious this is, regardless of if you were correct in the first place.
> In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal.
After enough time, the neighbor acquired the title to the land through adverse possession and the fence became legal. Before that, the fence was illegal as it was built on property that the neighbor did not own.
> What you're referencing is probably a "prescriptive easement" and is legal
No, what he is describing is adverse possession, which is
different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)
> and is legal (depending on your jurisdiction).
No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.
That one is a puzzler, and I encountered it with a neighborhood issue recently. Why are there some rights that are required to be periodically exercised in order not to be withdrawn? Didn't make sense to me.
Perhaps because they're not "rights"; they're legally-granted privileges.
I agree that this sort of law is bonkers, but understand that no one has a "right" to own land[0]. That's a privilege conferred by legal frameworks, and only works because we all more or less agree to abide by them and live in civil society.
[0] The US Constitution does not grant this right, and in fact the Framers were well aware of the divide between those who did and did not own land at the time, and considered landowners to be more deserving of participation in government.
The source of the possession being law is understandable.
I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused.
Is it to help turnover unused land through the generations and ensure it doesn't sit idle without active use by a rich person? What's the purpose of such an allowance in the law?
I'm guessing it comes from some old British reason.
That's a really good question, and I wonder as well.
I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good.
Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot.
So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers?
But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want.
The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter.
(And thus we have the philosophical basis for housing crises.)
I think the other important angle is that land is often the foundation of other property (structures, improvements, etc.) You own land, but care so little about that land that someone else builds some other property on it. Then 20 years later you notice, and try to claim it back, what do you do about the structure and improvements? The adverse possession laws give an incentive to actual owners to exercise their ownership now, rather than incentivizing them to stay silent, so as to later claim the land and all improvements for free.
> I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded
AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court.
More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it.
[1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.
Well, it is definitely true that active in-person sitting on a property could be beneficial to those who have more time than lawyers.
Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known.
I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs.
In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.
Adverse possession was never really about squatters' rights. It effectively acts as a statute of limitation that cuts off the period in which someone can make a claim to property based on defects in the possessor's title. It's not about protecting the ability of a poor farmer or poor shop owner to take over some abandoned land. That's the exception, not the rule, and it usually would have happened umpteenth transfers in the past if it happened at all. Usually such people buy the property in relatively informal deals--at least, informal by the standards of the Civil Law, but often sufficiently formal to meet Common Law requirements. But because the risk of title defects is much more ominous in Civil Law countries, banks and other formal sectors of the economy heavily discount the value of that property as collateral, if they even value it at all. So it makes it more difficult for the poor to build wealth. Even in the U.S., many small business owners will get their start by mortgaging their homes. The ability to use property as security is a critical mechanism for the poor and working classes to bootstrap themselves into the capitalist economy.
At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market.
De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent.
In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers.
On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.
Wow, how complex and fascinating. I am further confused (although not surprised) that the states are all over the map (hah) in terms of duration of adverse possession taking effect: https://en.wikipedia.org/wiki/File:Adverse_possession_US.pdf
I went to law school mid career and really enjoyed property law, but returned to being a code monkey after graduation.
Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.)
* Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing".
* Itzchak Tzachi Raz, Use It or Lose It:
Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)
Perhaps a right-of-way issue. Two parcels adjoin but access to one is via a road across the other. Courts would probably uphold the right-of-way access by the back parcel but if not used for some period of time the front lot owner could argue the right-of-way was abandoned and fence the road off.
On what basis does he "officially own" it? Presumably there is a plat on file with your deed of title to your house and its lot that gives the boundaries of your lot, and another plat on file with your neighbor's deed of title to his house and its lot that shows the boundaries of his lot. Presumably both of those plats say the fence is on your property.
Adverse possession is a specific thing in some jurisdictions where if you visibly and openly occupy a piece of land for long enough without a challenge from the original owner, it becomes your property and the original owner loses it.
https://en.m.wikipedia.org/wiki/Adverse_possession
I know what adverse possession is. But there are specific conditions attached to it, which will depend on the particular statute in effect in the particular jurisdiction. For example, if the poster I responded to were to tell in court the exact story he told here--"I didn't realize the fence was on my property until I had a survey done, now I realize it and I'm bringing a challenge"--would the statute in effect in his jurisdiction bar him from seeking any relief?
I think the court would be very favorable to the poster. If only because adverse possession is not the sort of law that doesn't scan well with modern times. I know that's not how all law works but if that didnt work I'd go slip in his driveway during winter and bury him in frivolous lawsuits until the end of time.
That's odd. My neighbor built his house on the side of his property and inadvertently built it 5 feet over onto the neighbor's property. The way they worked it out was that my neighbor had to buy that portion of his neighbor's property. The alternative was to move (ie, destroy) the building.
Are there conditions on the effort made to revert back to normal? Example moving a fence is not the same as tearing down a 30 year old building crossing a property line.
Several lawyers picked up on that on Twitter. It's definitely not a correct statement about every kind of "law." But it's right about statutes, sometimes called "positive law."
English history gave us a very confusing legal structure, where there are statutes, (common) law, and equity -- all variously called "the law."
It’s unclear, but it sounds like you’re saying that Texas law expressly allows this. Isn’t this the opposite of what happened in Oklahoma, i.e. there never was a law that reduced the government’s treaty obligations, so the law as written still stands?
In other words, in both cases the laws, as written, were followed.
Adverse possession generally doesn’t apply to land owned by a sovereign. You cannot claim adverse possession against the United States, or against the state of Oklahoma, not even after squatting for many years. The Creek nations could be considered sovereign in this case, since they were party to a treaty with the United States.
Here's a case where it took 15 years of court action to get someone off of a parcel of land in Tempe, AZ that was part AZ State land and part City of Tempe. The man claimed his family had been occupying the land since at least 1877 and claimed ownership via adverse possession. If you hit a paywall just search on "tempe squatter".
The article says that the court found in favor of the state and the man had to vacate the land. That sounds like adverse possession wasn't enough to fight off the state when they wanted the land back.
The dissent says that the 'reservation' was disestablished over time with the effect of many laws. So those 'unlawful' acts were, in fact not unlawful.
Maybe it's different with a "nation". If a Frech national comes and builds some fences in Maine that stay for 10 years, can he claim they've moved the border of France?
A little absurd, yes, but I'm not sure adverse possession applies so cleanly to state boundaries as people seem to be implying in a few HN threads...
"Benjamin Franklin stated that the destroyed tea must be paid for, all ninety thousand pounds[citation needed] (which, at two shillings per pound, came to £9,000, or £1.15 million [2014, approx. $1.7 million US]).[76] Robert Murray, a New York merchant, went to Lord North with three other merchants and offered to pay for the losses, but the offer was turned down.[77]"
They are safe on a technicality there as they never try to claim continuity with old laws and new laws. Even if dumping the shipments of foreign merchants is illegal under both sets of laws or indeed copied verbatim it is breaking of the old set of law and not the new law as it wasn't "born" yet.
> In a joint statement, the state, the Creek Nation and the other four of what is known as the “Five Tribes” of Oklahoma said they were making “substantial progress” toward an agreement on shared jurisdiction that they would present to the federal government. The other tribes are the Cherokee, Chickasaw, Choctaw and Seminole.
So I wonder whether more of Oklahoma could be affected.
And what about other states? I vaguely recall that the Mohawk have claimed a large chunk of New York.
> the Mohawk have claimed a large chunk of New York
Anyone can claim anything they want.
What is relevant here, and why this case was decided the way it was, is that the federal government and the tribe entered into a legally binding, clear contract.
Lands east of the Mississippi in exchange for a large piece of what is now Oklahoma, in perpetuity.
And Congress never explicitly reneged on that contract. Ergo, it still stands.
Should the Mohawk produce a similarly ironclad agreement regarding New York, they would then have a claim.
> In February 2005, the Mohawk Nation Council of Chiefs (a traditional Haudenosaunee government), the St. Regis Mohawk Tribe , and the Mohawk Council of Akwesasne signed an agreement with Governor George Pataki to resolve their historic claim to lands in Northern New York.
> Represented by the Indian Law Resource Center, the Mohawk Nation Council of Chiefs approved the agreement only after years of vigorous advocacy to ensure that the deal adequately protected the interests of their community and of future generations of Mohawks. “Through a lot of hard work at home and at the negotiating table, the Council of Chiefs has forged an agreement they can be very proud of,” said Indian Law Resource Center attorney Alex Page.
> The settlement agreement resolves legal claims first filed in federal court nearly twenty-five years ago. Those claims site repeated violations of a federal treaty confirming Mohawk land rights. Under the settlement, the Mohawks will receive lands and monetary compensation, as well as the opportunity to further expand their territory through purchases from willing sellers. The agreement does not include casinos or taxation, two issues the Mohawks successfully fought to keep separate from the land claim.
But near the end, I see this:
> Although legislation implementing the settlement passed the New York Assembly in 2005, the State Senate was not able to vote on the measure. We hope to see such legislation passed in the near future.
So maybe it's still in limbo.
Edit: From ciabattabread's comment, I gather that it remains unresolved.[1]
Large parts of Tacoma Washington are tribal land owned by non-tribe members and it functions. I would assume a similar arrangement would work in Tulsa.
This is what Justice Thomas has been doing for a long time now (to a fault), and Gorsuch has also taken up: Congress, do your job rather than make the judicial branch perform extralegal bench activism.
Sure in theory Thomas is doing that, but it feels a lot like cosplay when such a resolution would go against his general views on power in general (see this case).
People might have their legal doctrines, but it’s rarely as clearcut as you lay out and all the justices can only at most be “problematic faves”
I don’t recall the exact percentage, but historians found that something like 1/3 of the US mainland territory was never officially ceded from previous treaties (and something close to that likely ceded due to fraud, but that’s obviously more likely to resonate with moral argument than stand up in a court of law in the current legal system).
My city (Seattle) is undisputedly Duwamish territory. The way that’s been dealt with is to deny the Duwamish nation federal recognition of existing at all, so legally they have no claim as a nonexistent nation.
Wait, so congress can throw away promises at its whims that was supposed to last until perpetuity? And SC will be fine with that as long as promise was thrown away explicitly?
SCOTUS does not rule on your second question. The first is a well-known flaw in American government, which Gorsuch quashed with his opinion. Effectively, it reads: Congress, this is your problem, not ours.
That’s what it means for a legislature to be sovereign — you kind of need the ability for future people to reverse past decisions to have a functioning democracy
We have this principle here in the UK as well. No parliament can ever be constrained in it's actions by any previous parliament.
This came up in the Brexit controversies when the government tried to mandate an exit date as being immutable by future legislation, but the Speaker wouldn't have it. In that case some Brexiteers cried foul that it was overreach by the Speaker, but of course such a weapon could equally be used to make our membership of the EU irrevocable. It's a sound principle.
>To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.
Interesting logic. Now do Roe v Wade. Are they going to overturn that too because it allows the injustice of the murder of millions of unborn Americans? Probably not. Funny how Stare Decisis goes out the window when it's an issue the justices care about, yet conveniently reapply it when present day utility outweighs historical injustice.
You're using the same word -- Justice -- to mean two things.
The court means justice as a violation of the law.
You mean it as a violation of your opinion of what is right and wrong.
Whether your like it or not, Roe v Wade, and Doe v Bolton are the settled court cases, and legal justice is what flows from that. Calling what is legal "unjust" because you disagree with it further reinforces the need for this decision.
> The ruling voided McGirt’s sentence of 1,000 years in prison but he could face a new trial in federal court rather than state court.
Not changed by this ruling, but it strikes me as really odd that you can sentence someone to prison for that long, or that you would bother. Why not just say life in prison? If your state is 103 years old, saying anything about the next 1000 years seems ... lacking in credibility.
So let's say fraud has a standard tarriff of ten years.
And we agree that committing two frauds is twice as bad, so we add them together. Still makes sense.
And someone defrauded a LOT of people. Say sixteen THOUSAND.
That's how you sentence someone for 141,078 years...
(They served eight.)
Thanks for linking that wikipedia page. Some of those examples sound crazy. In particular, I don't understand the motivation in cases where there was a sentence of several thousand years, and later it was reduced by 500. Does that reduction in sentence provide any kind of actual benefit to anyone?
It is perverse, but there is a method to the madness. Some sentencing mitigations or parole decisions are based upon length of sentence. Someone who is given a 20 year sentence may be eligible for parole when, for example, 1/4 of the sentence has been served. By setting the sentence to a ridiculous length it is effectively denying any possibility for parole without directly stating that the sentence is to served without any chance for parole.
They already do this in LA. Get sentenced to 120 days in jail but due to overcrowding you’d do 5-10 days in jail.
Soon local politicians will require you only to do 1% of jail time so you’ll be sentenced to a 100 years in jail for a misdemeanor. This already exists in the California bail system where you pay 1% of astronomically high bails (eg $60,000 bail for 1st time misdemeanor, like if they change a court date and fail to inform you).
In the Netherlands life imprisonment means exactly that: imprisonment for life. There is no option for parole, other than by royal decree (which seems to have happened 3 times since 1970) [1]
According to Wikipedia[2], there are several countries where this is the case:
> In Europe, there are many countries where the law expressly provides for life sentences without the possibility of parole. These countries are England and Wales (within the United Kingdom), the Netherlands, Moldova, Bulgaria, Italy, Hungary, Austria, Malta, Cyprus, Albania, Ukraine and the Republic of Ireland.
This seems much clearer to me than a 200-year sentence which needs to undergo a calculation to get the actual sentence length.
As I understand it, the way trails are done are also a bit different: rather than "two counts of X", people are judged based on "did X two times". In other words, you don't get a separate conviction for both Xs. So if someone killed three people, they're judged based on killing three people, rather than based on every individual killing. In those cases someone can receive a life sentence, rather than "3x30=90 years" or some such.
All these legalistic reponses, and yet none really touches the sheer absurdity of sentencing someone to 1,000 years. Doesn't the lifespan of a human being figure in at any point? Talking this way is dehumanizing.
Let us say that the punishment for murder in the first degree is always a 50 year jail term. A man who is 75 years of age is charged with two murders and convicted.
1. At 75 years of age, he will not live to be 175
2. The law dictates that the punishment per murder must be 50 years
3. He's been convicted of two murders, and must have both charges applied to him unless we are not to expect punishment for one of the victims.
Ergo, he must have a term much longer than his lifespan.
There are a thousand details I just skipped over (concurrent sentances, multiple crimes commited in the same act, stacking versus non-stacking offenses, etc) but this isn't unusual and is a perfectly rational and sane outcome.
In the US, it's possible to be let out of jail for a life sentence in only 7 years, when you account for parole.
Judges are elected officials, so sometimes they like to make a nice big show of giving out a 1000 year sentence to appease the masses, when "life in prison without parole" would have done the same job.
Raping a 4-year-old girl is pretty dehumanizing for the victim. I think of an absurdly long sentence as a way of conveying how abhorrent the justice system finds that behavior.
Application of law is mostly derived from first principles. So you start with two things that are believed by most legal experts:
- Sentencing to life without parole is considered inhumane
- Criminal sentences should be proportional to the crime
- Sentences are supermodular
Let's say there is a minimum sentence of two months for some insignificant crimes, start increasing the length for more serious ones. Most serious crimes usually involve several different crimes that are committed while committing the "main" component of the crime. So it starts adding up, and it starts adding up fast due to the supermodularity.
So even though the end result is seemingly absurd, trying to make it non-absurd would violate some of the most agreed-upon principles and here we are.
Not necessarily the case. There are lit fees of course, and filing fees, discovery, etc. But once you get to the SCOTUS stage, assuming you're not retaining Gibson Dunn or Covington or someone's supreme court practice, there are many clinics with some star power that will do the case for free. Many top law schools have Supreme Court clinic and we sought out cases that we could bring to SCOTUS. We would have died to help take this case to SCOTUS, for example, completely free.
Maybe, maybe not. Plenty of activist judges out there, so you never know how stuff will go. SCOTUS also gets to select what they will look at, and there are plenty of topics that they have left as split circuit opinions (look at all the stuff under gun rights).
Even if I had standing, it would never make it up courts because the oligarchy (judges) decide whether it is worthy or not. Just look at all the split decisions that SCOTUS leaves in place by declining to hear. Logically one of those two plaintiffs is being screwed.
Worthyness only matters when the matter goes up to the SC. There are many layers of courts below them.
If the SC decides the matter is not worthy, that doesn't mean that no decision is reached - it just means that the decision of the lower court is binding.
Yes, but it may be based on a flawed precedent that only the supreme court can overturn. There are also many circuit decisions which conflict with each other that SCOTUS has refused to address. In these instances the court is allowing one of those two plaintiffs to be screwed.
No, it's split decisions from two separate circuit courts on the same issue with conflicting results. Basically one plaintiff from TX would be told 'yes, you have this right' while a plaintiff from NY would be told 'no, you dont have this right'.
I would if I believed in the system. The system has become an oligarchy where the ruling class is not subject to rule of law. The system ignores blatant violation of law by making frivolous excuses. For example, how can we allow people to wait years for a trial when the constitution guarantees the right to a speedy trial?
The system is the people. It only exists because people say they can't be bothered. It's easier to convince yourself it won't work because the the alternative is trying, and that takes effort. But that indifference permits the system to continue, from the bottom up, allows it to grow cancerous and metastasize.
The world you allow to happen us the world you get. The blame falls on you this time. You get what you deserve if you let it.
It falls on the collective. I do my part - I vote, write my representatives, attend protests/counter-protests. The system will not change because it does not work the way it is supposed to work. Your statement saying that the system is the people is no longer true.
Just so you know, we are a republic. Not quite as easy as a democracy, especially since we are more of an oligarchy (the ruling class is not subject to the complete rule of law).
> Just so you know, we are a republic. Not quite as easy as a democracy,
That's very peculiar specially American internet thing to say. In 1787 the terminology was still unsettled but it's not so today. In both political science and in the common use outside the United States democracy and republic are not excluding each other.
United States is democracy (the source of power) and republic (the structure of the democracy as opposite of monarchy) and federation (structure of the government).
Most modern representative democracies are republics. The term republic can be used to any form of government in which the head of state is not a hereditary monarch. For example many communist states are Republics.
US is also first or one of the first liberal republics.
It's a democratic republic. This means that the individuals holding the positions of authority in the republic have more concentrated power than the citizens in the democracy. For example, SCOTUS has the power to turn down appeals, even when the circuit decisions are split. Logically, this means that they are denying the rights of one of those two (or more) plaintiffs.
It may be in common language, but it does make a difference in this specific situation because you are essentially suing the people who have been placed into power and those people could use their power to suppress your objections. Sometimes the judges can be a part of the complaint too, and they aren't even elected but rather appointed.
> Conservative Justice Neil Gorsuch joined the court’s four liberals in the majority.
The US supreme court is a special kind of circus.
For the life of me, I can't remember any of the names of the justices on the Canadian supreme court. Its extremely uneventful, and even if there have been controversies, they were so minor or rare that I can't remember them.
The US on the other hand... The partisanship is so blatant and just accepted.
And not only that, the controversy.
I am still astounded that Kavanugh was approved after he started ranting openly about clinton conspiracy theories, awkwardly asking people if they like beer, and lying about common terms like "devil's triangle".
The United States has a different system of government from Canada so it's not surprising that there are differences.
Given the primacy of our Constitution and the Supreme Court's role in interpreting whether a law is consistent with our our Constitution, choosing justices is a rather existential question.
What differences? The Supreme Court of Canada is in essence directly appointed by the Prime Minister so is very vulnerable to politicization. The Supreme Court is also responsible for interpreting whether a law is consistent with our Constitution so it's just as existential.
> The Supreme Court of Canada is in essence directly appointed by the Prime Minister
And that's the crucial difference: if a Supreme Court judge in Canada starts misbehaving I guess Prime Minister can dismiss them just as easily. In the US judges are appointed for life, so if the wrong person gets appointed that choice will haunt us for a few decades.
I actually agree with tyre on this. Canada has the Westminster system, meaning a Parliament where one or more parties forms a government. In Canada particularly, party discipline is near absolute: you vote with your party or your party kicks you out. This means legislation is really passed on a party level. A party with a majority basically passes the legislation it wants to, with none of the horse-trading and whipping and deal-making that is common in the U.S. A minority gov't has to make a deal with another party to pass legislation, but that's between two entities, not the tens or hundreds of congresspeople who need to be corralled.
The result of this is basically higher quality legislation: no loopholes to gain this Senator's support, no watering down or poison pills; but also, no extremist bills with clauses to trade away to buy support. The gov't passes the legislation it wants to, in the form it wants to, for good or ill. As a result, I believe, matters reaching the Supreme Court of Canada really are more narrow legal issues, not another avenue of attack on legislation. There can be significant rulings with broad implications, but overall, Canada's Supreme Court isn't a battleground because legislation isn't a mess offering a variety of vectors of attack. It's more internally coherent.
Supreme Court decisions may be explained by (1) partisan views; (2) differences in judicial philosophy; and even (3) pragmatic views (e.g. 'what can the country handle right now?').
As to learning what specifically motivates the justices, this is a lengthy topic. There is a lot to chew on.
Actors outside the Supreme Court regularly try to influence it in many ways. Some want it to be more partisan, for example. Some want to make the court more insulated from elections of the president and senators. Some want to modify the structure of the Court itself.
> The ruling means that for the first time much of eastern Oklahoma is legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city.
So does this effectively create two different rules of law over the same land...?
It's been that way, this isn't much of a change for the tribes. Effectively, the tribes have a different system of governance that falls under federal jurisdiction. They're "outside" the state government. It's a hot mess, but I don't think forcing sovereign nations to conform the the occupational nation is a good idea.
It probably will come down to further court cases, but likely, yeah half of Oklahoma will be subject to Oklahoma state law, and half will be subject to tribal law. That's no different than a state being neighbor to a different state with looser/different laws.
Probably they'll work out a compromise like: tribal government pays Oklahoma fees to have them run infrastructure as they have been, and the State forwards tax money to the tribal governments. That seems like the most logical short term solution, essentially status quo.
But the main change will be that tribal lands may now have more power to change local laws (such as ignoring laws against selling alcohol on sundays, etc).
It's actually a lot more complicated than that. Tribal law is mostly for intra tribal criminal cases, and does not have jurisdiction over people who aren't members of the tribe or when a crime is committed outside a reservation. So, going from having a relatively small portion of a state, where most people were probably part of a tribe to having have a state in that status makes thinks very complicated for law enforcement. It's not like the tribes just randomly took over half of Oklahoma and established a new state. For most people, Oklahoma will still have jurisdiction over them.
Currently the federal government has a wide range of powers over reservation land such as the ability to prosecute crime. For better or for worse, Congress can expand these powers at any time to include dissolving the reservation. The law in all these aforementioned areas is well settled.
The issue in this case was with a state government, specifically Oklahoma. This ruling will limit Oklahoma's ability to prosecute crime when (1) it occurs on the reservation and (2) involves members of the tribe. Congress would have to act to change this, or some agreement could be reached with the tribe.
"We reject that thinking. If Congress wishes to withdraw its promises, it must say so."
As with so many controversial court rulings like the ACA mandate case, our courts keep getting put into the decision because of the massive failure that congress is. Congress should either fulfill the promise or not, or whatever. instead the judicial bodies end up making legal judgements with big ramifcations that largely should be left to the legislative body.
If congress doesn't change something, then that means they have determined no change is necessary.
That isn't an invitation for the executive branch (or judiciary) to overreach.
In theory congress could go years without passing a single law, and that would be fine. It would signal that the current laws are sufficient.
(As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)
True. In this case, either way, half of Oklahoma belongs to the tribe. Congress has not taken it away in the legally prescribed manner, therefore SCOTUS has no choice but to say that until congress does, the promise has to be upheld.
Congress has to do its job. Or not. Whichever it chooses. But it can't rely on the courts to do its job. The courts are right to let everything sit exactly where it is, and drop the entire matter back in the lap of congress.
> In this case, either way, half of Oklahoma belongs to the tribe.
If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens.
And this is exactly what the court ruled - if Congress intended to withdraw from or change the agreement they’re well aware of how to make that happen. And they didn’t make it happen so they must not have intended to change anything.
I would assume (haven’t read the whole opinion yet) that nothing about this ruling now prohibits Congress from exercising their authority to take any further action.
A recent dissent by Justice Thomas is elucidating.
"Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong [the Department of Homeland Security's (DHS)] initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government."
.
This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.
Things like DACA _need_ to be written in stone to avoid forcing the supreme court to become the effective legislator instead of having congress pass a law that enacts it as an actual program.
"The Court could have made clear that the solution respondents seek must come from the Legislative Branch."
In this case, that's exactly what the majority concluded. In layman's terms, this is a decision that says, "We aren't doing a thing. Congress made a promise. If you want to rescind it, go talk to congress, not us."
Congress created the reservation situation in Oklahoma many, many, many years ago. Not the Supreme Court.
If respondents want to undo that promise, they need to take the matter up with congress. That's what the court is saying. You can't short circuit the constitutional order. The court is right to drop this right back in the lap of congress.
> This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.
It didn't rule that the current administration can't undo the program, it ruled that the administration has to properly justify that decision, and not doing so is unlawful.
At no point did it rule on DACA itself, or prevent the administration from providing actual, motivated and legal reasoning for rescinding the program.
Also
> This was his dissent on DACA.
Which corresponds to the majority ruling on this case, yet I can't help but notice Gorsuch joined the liberal justices in the majority, not Thomas.
However DACA itself is unlawful in that it is an Executive Order undermining Federal immigration law, so the administration's rescinding it on the basis of its unlawfulness should be sufficient enough justification. The problem is that the Court's ruling indicates that an EO which subverts existing law cannot be overturned by subsequent administrations simply on the basis of its illegality. Justice Thomas' dissent says exactly this.
That's incredibly problematic. According to the recent ruling therefore, a President has the power to issue and EO which prevents the enforcement of certain laws.
> Now the court rules the current administration can't undo the program?
The court rules that the current administration can't undo it simply by waking up one morning and say "I wish that it be done;" it actually has to go through a process to explain why it is taking the decision it is, which is the same process it had to do to enact the program in the first place.
> This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.
This is an inaccurate summary of the decision. The fact that you gave it, after giving an accurate summary of the dissent is very telling. It indicates that only a fool would trust you on political matters as you are a willful liar who does not respect your audience.
I eagerly await your correction and apology. Just kidding, I am fully aware that you have no respect for truth, and that you have no central morality.
This could mean a lot of things. Do you mean no change to the law is necessary? SCOTUS is upholding that principle. It is saying that the law as written stands.
The Judiciary is not overreaching here. They are doing exactly what their job says - they're interpreting existing laws, not writing new laws.
I understand your point, but I fear you may misunderstand, because I believe the Decision is in line with your views.
The justices' point is that congress, in its inaction, has not enabled the reduction in Creek reservations that has been perpetrated through large-scale disenfranchisement all all levels of governance, actions which are in direct conflict with the reservation treaty signed in perpetuity.
For these actions to be legal, Congress must have authorized them. This has not happened and therefore, as the justices rule, these actions are unconstitutional.
My disagreement is with people who excuse executive overreach by saying, "congress refused to act." Put another way, they're saying, "I had to work around the law to get what I wanted."
> (As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)
Normally this wouldn't be so bad, Congress is bad at making small evidence based changes on a reasonable timeline so instead they setup the rules for making the rules and the goals and instantiate or grant that authority to a division of the executive. Unfortunately it seems the courts have become very enthralled to varying degrees to the unitary executive theory which makes corralling that power more difficult.
> If congress doesn't change something, then that means they have determined no change is necessary.
This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.
To say otherwise is akin to saying that, because you and your husband can’t agree on where to eat for dinner, you must not be hungry.
Both parties might believe that a law needs to be changed, but changed in opposite directions: one might want it repealed, the other strengthened.
> This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.
That is actually literally what it means. The way the Union is set up, there is a certain amount of consensus necessary to pass legislation over 50 States across 300+ million people.
If there is a deadlock, then it's the system telling you that the consensus isn't met. In a Federal system, this means that the next best place to (try to) pass the law is at the State level, where you may have less of a deadlock.
This is by far one of the pieces a lot of people seem to miss. The system was set up for gridlock in hopes that it will temper some of the more dangerous tendencies of powerful and ambitious men.
It does indicate a consensus is not met, and merely that; the GP claimed the this lack of specific consensus on action is actually a form of broad consensus on inaction, a leap in logic that is unfounded because it ignores the political game theory that is employed in obstructionism.
It also ignores the fundamental brokenness of the system through a sort of circular logic: things didn’t change since they didn’t need to be changed.
The judicial branch can decide that a law is not constitutional. It's then Congress' job to find the political will to make the law constitutional. Either by altering it, or amending the constitution. It's a governor on the system. Only the important stuff is supposed to make it past all three branches unscathed.
It either has to be something populist - everyone wants it so I won't get voted out of office - or it needs to be worth spending a ton of political power. When Congress is overwhelmingly in favor of a law, they can prevent a presidential veto. But that degree of unanimity is rarely free. It cost people something else, so it better be worth the opportunity cost.
This is a conclusion I'm coming to more and more. It's easy to blame Presidential overreach or Supreme Court overreach, but the Congress seems to be steadily abdicating responsibility while still managing to get very little of substance accomplished.
They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness. In some ways we're probably fortunate that the other two branches have picked up the slack, as much as we (myself included) like to complain about it.
I believe the claim is that the Roman emperors came about because the Roman senate became so mired in infighting that it was incapable of governing. I'm not a historian, but from what I understand, there is at least an element of truth in the claim.
There is a school of thought (with some validity, though I think it lacks nuance) that points out that the early Roman Empire, the Principate of Augustus until the Dominate of Diocletian, tried to empower the Senate. The Senate had its set of provinces, the emperor his. The cursus honorum was still used to track and groom administrators and leaders and the senate's support (balanced against the army and the people of the city of Rome generally) still legitimized the emperor. But over time, goes this line of thinking, senatorial attention and interest fell away somewhat from administrative and managerial responsibilities and turned more into a social/politicking club, and the emperor "naturally" picked up the slack.
There is an element of bias to this, and it often reveals a political preference of the author, but it's not without some merit.
Why is Rome important here? I can see the symmetry between Rome and what USA currently has - different rich powerful groups arguing and ignoring half the people, for example; rife corruption and nepotism - but how is Rome a model for a democracy, and one that seeks (in theory) not to divide the people into ruling and subservient classes at that?
I think part of the point is that aspects beyond democracy are taken for granted. The US citizenship and model of "being Roman" is pretty imperial in many ways. It has undersung virtues of tolerance. It doesn't matter if you were Greek, Gaul, Barbarian, or even Carthigian - once a citizen you are fundamentally Roman. Viewing nationality as not an immutable accident of birth is pretty damn "Roman". Many "modern" issues like Political Correctness and Multiculturalism are millenia old and can really be better described as "Imperial" Issues. They are encountered due to past and present expansionism and and broad interactions. Despite the negative connotations not everything classified as Imperialism is bad - just as it is a mistake to ignore the travesties of empires so is it a mistake to ignore its virtues.
Rome had many periods and the dynamics have played out before and provided disturbingly apt precedents even with the alien trappings and values.
I'm tempted to say that the uselessness of Congress is in indication of something else - we've pushed too much to the federal level. The decades-long tooth-and-nail fighting over healthcare makes me think that an effective system just can't be done federally; there's too much disagreement between states. Why not scrap most of the social programs, cut federal taxes, and let states implement their own?
Balkanization is the fastest way to find out what works and doesn't and allow for local control and decision making, it also makes nice for frequent wars and nutty leaders.
But if Arizona implements a different healthcare system than New York, even if each hates the other system, they don't get to have a war, because neither of them has a military. (OK, they each have their own National Guard elements...)
Nuttier leaders than what we currently have, you mean? As far as I can tell, the US did pretty well with less federal power for several hundred years; I don't really see how rolling back 50 years of federal policy would lead to balkanization.
In the US, about half of all spending happens at the federal level. Germany, which also has a federal system as a matter of its constitution, also has the central government spending about half of all government dollars. Canada is even more federalist. The vast majority, about 3/4 of 4/5 of government spending happens at the provincial level. Denmark also has the majority of spending at the local level. Belgium, Spain, Sweden, Chile, and Mexico are about the same as the US in pushing about half of all spending down to the local governments.
there's nothing wrong with a federal system, the problem is specifically with the US's system and how there are too many "veto points". Checks and balances and getting policy accomplished are essentially opposing goals. If you allow tons of "veto points" where having literally any control of any branch of government allows you to grind policy to a halt, then getting anything done relies hugely on gentlemanly good-faith.
In a two-party system that gentlemanly good faith eventually breaks down and you end up with our current problem, where you need supermajority control of all branches of government to actually do anything, because if you lack even one single point of control then party-line behavior will allow everything to be ground to a halt.
Parliamentary systems are better, there is just one house in most cases, and the executive is of the same party as the legislature, so when a government forms it has consensus and can execute policy. Yes, this is less checked-and-balanced, and that's a good thing, because accomplishing policy and checks and balances are opposing goals. Too much checks and balance and nothing gets done. If everything is fine that's great, but our system has been deadlocked for 20 years now, things are not great, and nothing can be done about it.
And there are still an executive and judicial branches in a parliamentary system, it is still a federal system, just not the American federal system.
The real "checks and balances" is ultimately voting.
Having snap elections allows that check to be manifested much more readily when the government begins to go off the rails of public opinion.
(the queen is actually a very interesting apparatus in the british government... apart from having some kind of maximum duration between elections, you are dependent on someone to decide when to call a snap election. Obviously you can't really rely on a government that is completely off the rails to call an election on itself, and party line voting poses obvious problems. So how do you deal with it? An oracle machine (in the crypto sense) that exists outside the system and can operate independently to decide when to call an election. Which is what the queen does, she can dissolve parliament and call an election.)
A conclusion I'm leaning toward is that any sufficiently large and complex political system evolves to a focus on veto as the principle means of power. The etymology, direct from Latin, for "I forbid", is insightful.
Smaller, simpler systems, with greater levels of trust, or greater inequalities of power, seem to avoid this. Large ones, not.
I'm sure there's some discussion of this in political theory, though I'm unaware of it. Listing out a typology of other loci of power would also be interesting.
Interesting ... a "focus on veto" would give a more nuanced role to the permanent members of the UN Security Council than just "those who hold the nuclear umbrellas."
> Why not scrap most of the social programs, cut federal taxes, and let states implement their own?
Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
Even every "red state" has plenty of people in need who can't afford to go elsewhere and shouldn't be asked to abandon their families and their lives to just not die.
(EDIT: I normally don't respond to killed comments, because feeding the trolls sucks, but: I live in Massachusetts, dude. I'm used to a state that actually works. I wish you all had them too.)
This is verging on an ad hominem attack: we need more federal powers because those people are awful baby killers!
The reality is everyone cares, they just disagree sharply on how to solve issues or which issues are priorities — to which the solution of several independent approaches seems reasonable.
When people in state A see that state B is doing much better because of policy X, they can choose to enact similar. I’m not sure I understand why they need to be compelled to adopt your preferred policies.
It’s interesting that you discuss “red states” being in need — but ignore the prolific violence in “blue cities” and poor trapped there.
This is not specific to one party. There is someone out there, opposite to you, who says the same thing but replace red state with blue state.
The root problem here is the people who insist that their political beliefs should be implemented for everyone in the country, not just for the people around them who agree with those beliefs. This idea that "we can't leave anything up to local government because there might be some local government out there who disagrees with me" is why we have so much federal gridlock.
Of course there is "another side". They're wrong, but they understand it's a fight, and my side still doesn't, so kudos to them at least for that.
I don't particularly care about self-inflicted wounds, but the splash damage upon the people whose lives they make worse in the offing is a damning indictment of this conception of federalism.
Shit's broken, and it's broken for the weakest among us, and it's only getting worse with the "drown it in a bathtub" corps stomping through the White House.
Is this the same "drown it in a bathtub" corps that signed a trillion dollar emergency social welfare spending bill a few months ago?
I respectfully submit that you might want to reconsider your priors and update them if you want to accurately reason about the present state of the USA Republic.
The Trump administration has observably almost fully embraced an MMT style social welfare program. The sovereign currency denominated deficits don't matter position has won. The only thing that's missing is the employment backstop, but the $600 a week federal unemployment bonus arguably achieves the same fiscal effects as paying for busywork.
>Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
>Even every "red state" has plenty of people in need who can't afford to go elsewhere and shouldn't be asked to abandon their families and their lives to just not die.
>(EDIT: I normally don't respond to killed comments, because feeding the trolls sucks, but: I live in Massachusetts, dude. I'm used to a state that actually works. I wish you all had them too.)
You could write an analogous comment from a perspective of "people in the blue states need saving too".
Are you going to be singing that same pro-federal tune if issues don't go your way at the federal level?
I live in Massachusetts too. While the burning dollars of taxpayers does keep us warm there is no shortage of states in the nation that would revolt if it had government that "works" the way our government "works". People in other states are not so willfully subservient to government in the name of the common good as we are. We step in line for things that would provoke revolt in states with stronger traditions of individualism and distrust for government.
We have a limited federal government for a reason. Massholes like us have no business telling people thousands of miles away with different cultural values and different economic circumstances how to live their lives. The hell do you or I know about what's best Wyoming? Exactly.
> Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
I'd be inclined to agree with you, expect I feel this is what got us Obamacare instead of a better system - and _even then_, there was a multitude of red states that refused to accept the Medicaid expansion, to the harm of precisely the people you speak of. Pushing societal improvements on states that don't want them feels like buying a sandwich for a homeless person and having them throw it on the ground, and I no longer feel its worth the effort.
Rural counties are conservative, urban counties are liberal, and never the twain shall meet.
I posit that there will always be this conflict until cities have a blue federation superimposed on a red countryside. But the constitution isn't set up that way. Maybe next time.
This can also be reformulated as "rural counties are empty" and point to a lot of the agita around much of the current political climate, 'cause land having as much of a vote as it does is pretty odd.
I think we need to reverse the unconstitutional Reynolds v. Sims decision which forbids the states from being set up like the federal government, with one house elected in proportion to population and one house elected geographically. The decision itself was rooted in little more than pipe dreams and moonshine, and the results are, I think, responsible for more than a little of our current dysfunction (another huge problem is the weakening of the parties themselves — they used to serve as a moderating layer, but no longer do).
The political disagreements within states are a lot less intense than the political disagreements between states. Maryland is a solidly blue state at the federal level. But we have a Republican governor with a 78% approval rating who won a third of Black voters against a Black candidate in 2018.
I… find it rather difficult to believe that a sufficient number of Americans coordinated and voted strategically over decades in order to intentionally bring to existence the current two-party deadlock situation.
It's working as designed. The same system that prevents Congress from properly voting on PPP Loans is the same system that prevents Trump from banning all muslims from the country overnight.
I'm not smart enough to know if there is a better solution for America.
What is a political party if not a means of mass coordination and strategic voting?
American politics has become less about policy and more about ideology and party loyalty over time, and that ideology has become more entrenched and unwilling to compromise with opponents.
Usually those of us who have voted for less government have voted for candidates that haven’t even gotten elected. People instead are voting for-or-against abortion, for-or-against gun control, or whatever other never-been-solved issues and then letting their voted-for representatives run rampant on nearly every other issue. (Never mind the role of the two party system, the anti democratic shenanigans in those parties, and the only real choice being the lesser of two evils.) Those politicians have given us more and more government in the form of regulatory bodies, enforcement bodies under the umbrella of the executive, and bureaucracy. You may or may not like those things but to lay them at the feet of people who want less government is absurd.
A government that doesn’t govern leave a power vacuum that will be filled. In best case by more local governments, but more likely by corporations or mafia style organisations.
While in effect it is abdicating, in reality, Congress is spinlocked by indecision.
There are deep divides between the branches of the electorate that have brought the representatives to office, as the United States faces a number of divisive issues. Those divides, and a preference for combat over compromise, leave us deadlocked. The center is there for the first party that chooses to leave its entrenchement.
When Congress reaches approximate agreement on an issue, particularly an emerging one, it can move fast. See the passage of the PATRIOT Act or the recent move to spend more than $1,000,000,000,000 on COVID-19 economic relief.
I think there are perceived deep divides but those are mostly fictional. e.g. a number of conservatives like the ACA but hate Obamamcare. Propaganda is doing its job of keeping the electorate divided, even if a large number of our aims are actually aligned.
It is their principle, they just prefer to shrink the parts of government they disagree with ideologically. Which is why we have the biggest, most powerful and most expensive military in human history but our healthcare and education systems are a joke.
First, it has: https://foreignpolicy.com/wp-content/uploads/2019/01/dod_cha.... As a fraction of the economy, military spending is a little over one-third of what it was the year I was born. It’s actually pretty much the only part of government that has shrunk.
Second, the military is one of the few aspects of government that’s clearly supposed to be done at a federal level. Why do you think there is anything inconsistent about conservatives not cutting back government uniformly?
> Why do you think there is anything inconsistent about conservatives not cutting back government uniformly?
There are 2 things that are not being taken into account.
First, historic trends are not reversed by relatively recent changes in allocation to the US military.
Second relatively recent changes in military utility of manpower vs aircraft vs cruise missile has made certain kinds of spending obsolete. A modern, effective military does not require the same logistics anymore, so of course spending has gone down.
There is nothing inconsistent about conservatives (Republicans) expanding military spending, as they always have and will continue to do so within the bounds of recommendations from the industrial military complex.
Without knowing your age - I'm guessing you were born during the cold war/before the fall of the Berlin Wall (or at some point in the immediate aftermath). That event alone (and not some small government principle) was responsible for less military money allocated to counteracting the specter of a Soviet world order
> Second, the military is one of the few aspects of government that’s clearly supposed to be done at a federal level.
According to the 18th-century conception, the army indeed becomes a federal concern in wartime, but on an everyday peacetime basis, the training of soldiers was supposed to be done within militias regulated by the states.
This is a great example of the flaw of using averages in an unbalanced society. Some wealthy districts spend far above the OECD average, while many poor districts are grossly under-funded (and under-achieving).
Sure, but that is not evidence that republicans have shrunk educational spending.
Instead, it is evidence that there is bipartisan support for educational spending, but with uneven beneficiaries.
This is a different issue and the solutions to the first problem are not the solutions to the second.
Last, this isn't really a partisan federal issue. Most school spending is determined the state or local level and the same inequality is present in predominantly red and blue states.
> it is evidence that there is bipartisan support for educational spending,
That does not correspond with the rhetoric that I've seen. Republicans are adamantly opposed to increasing spending for public education, and have systematically cut support for higher education spending in state budgets. Instead, I regularly see the meme that there's tons of fat in the education system; that we spend just as much as everyone else, but have worse outcomes. The fault is in the schools for not spending what they have wisely enough.
And I think that the funding story is flatly untrue. Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
> And I think that the funding story is flatly untrue. Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
This is patently false. Local governments provide 45% of K-12 educational spending. State governments spend 47% and the federal government spends 8%: https://www.urban.org/sites/default/files/styles/optimized_d.... State and federal funding go overwhelmingly to erasing the disparities in local funding.
Look at the funding numbers in your own state. Here is mine: https://i2.wp.com/conduitstreet.mdcounties.org/wp-content/up.... The funding differences are based on cost of living, not local income. My solidly middle/upper middle class county has spending near the bottom because it’s pretty rural. Baltimore which is very poor has among the highest. Montgomery and Prince George’s, which are opposite sides of the income spectrum, get almost the same amount of funding. You can also see in that chart how differences in local funding are more than compensated for by differences in state funding.
> State and federal funding go overwhelmingly to erasing the disparities in local funding.
And it isn't enough. Not even close.
Boulder Valley: 13.8k/student. Pueblo: 10.5k/ea. Fort Morgan: 9.5k/student. Those are sufficiently widely varying that looking at "average spending" paints an inaccurate picture.
Durham public schools: 10.5k/ea. Chapel-Hill/Carrboro: 15k/ea.
Second, I’m not sure what your Colorado example is supposed to prove. Boulder is a much more expensive city than Pueblo. Land for schools is cheaper, salaries are lower, etc. Those costs seem roughly comparable accounting for local costs.
Third, comparing spending across states is deeply misleading. The cost of schooling in Idaho (which makes up several of the lowest spending school districts in your link) bears little relation to the cost of schooling in New York (which makes up several of the highest spending school districts in your link). The irony of your example is that Idaho spends about 1/3 of what New York spends per student, and Idaho students outperform New York students: https://www.sde.idaho.gov/assessment/naep/files/general/naep...
Fourth, even the low spending school districts in your examples spend more than European countries: https://www.statista.com/statistics/381745/education-expendi.... School spending in London is about $7,402 per student. That’s substantially less than Pueblo or Durham, and only a bit more than the state average for Idaho ($7,100). I guarantee you that money goes a hell of a lot further in Durham or Boise than London!
And yet, we still can't afford 5 full days per week of school. 60% of all districts in our state only have funding for 4 days per week. Many of the remainder are on 4.5 days/week.
> Third, comparing spending across states is deeply misleading.
This is why you cannot use averages to talk about school funding relative to the rest of the OECD. That's my point. You asked for statistics in my state. I gave them, in my most recent two states of residence.
Why do you think that the individual school districts have so much of a problem providing and equivalent educations when compared to other individual school districts that have much better outcomes with less funds, even controlling for cost of living?
I wonder if it has to do with the level of services expected and provided between locations, states, and counties.
For example, I know that special needs students, which can be notoriously expensive to educate.
I spent some time digging into the London story. Here's some facts:
Spending levels are much higher than parent reported. [1] for one school chosen at random shows that their budget was almost 8000 GBP/pupil - over 30% higher than cited. Furthermore, 82% was staffing. A mere 3% is allocated to facilities.
In my local school district[2], salaries for all staff add up to a little less than 60% of the budget. Facilities (21.6%) and debt service (7.6%) are a far greater fraction of our costs.
In short, the "education is cheaper in London" story is a lie. Many of their costs are payed for by a different color of money entirely, and simply doesn't show up on the education budget.
The school you picked “at random” is a community academy, which is a special kind of charter school outside the regular school system, which may also receive outside funding. So that doesn’t contradict the numbers I posted, which are for regular public schools in London. Here is another chart that’s consistent with my numbers: https://dfemedia.blog.gov.uk/2019/10/11/school-funding-alloc...
Here's another data point, having looked at a few different US district budgets: Employee benefits are about 1/4 of the staffing budget. Those benefits include things like health care and pension that are part of national coverage in the rest of the OECD, but come out of the "education" budget in the US.
No. Nearly all OECD countries pay for health and pension insurance through payroll taxes. So a school in France would pay employer-side payroll taxes for a teacher, which would show up as education spending. And the teacher would pay the employee-side contribution from her salary, which itself would show up as education spending. (That is to say, “national coverage” in most European countries doesn’t work how Americans think it works, which seems to be that health benefits for middle class people are paid for through income taxes on rich people. If it did work like that, you’d be right, but pretty much only Denmark does that. See: http://www.oecd.org/tax/tax-policy/taxing-wages-france.pdf. Look at France. About 25% of the total cost of an employee to an employer, such as a school, is employer-side social security taxes—the OECD’s term for payroll taxes for health and pension benefits.)
Moreover, many countries exempt teachers from the national pension scheme, just like the US. The UK, which I used as an example above, has a teacher pension system
I was with you up until here.
Are you claiming that France does not have progressive income tax rates? This is certainly not the case. France has both a higher average tax wedge, as well as proportionally higher tx for high incomes.
French income tax maxes out at 45% on income above €157,807, while US federal income tax maxes out at 37% above $518,401
I just wanted to say thanks for the insightful comment. I wasn't aware that this data had been compiled in such a clear and concise manner!
That said, what do you think drives the disparity in outcomes between different US districts and schools, if the funding roughly tracks with cost of living? Similarly, why are schools in European countries so much more efficient in terms of educational costs?
One thought on the first question that comes to my mind is that students who are impoverished or have english as a second language will not have comparable outcomes, even if their school districts have comparable funding.
I wonder if one aspect of the second question is the handling of special education for disabled students. Do European countries educate these students in a different manner from the US. Is the funding taken into account when we look at per student costs?
>Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
This is what I said as well. There is also vast difference in per-student spending within blue states and blue counties. This is evidence that the problem crosses party lines.
You hear that rhetoric often. However the truth is different. If both the democrats and Republicans propose increasing spending, but one increases less than the other, the one that increases less is said to cut spending. I've seen cases where the larger spending passes and they take credit for it the next year even though the states budget didn't balance (the state has a balanced budget requirement) and so what was actually spend was less than what the spending cut party proposed. (we don't know what would happen if the other party had won, since they claim they would have delivered by spending less elsewhere)
Obviously high-cost states spend more than low-cost states. But their education spending is consistent with the size of their economies. Mississippi has a GSP per capita of $35,000 and spends $8,700 per student. Italy, Spain, and New Zealand have similar GDP per capita and also spend a similar amount per student.
I would say that the discourse is insufficently precise in accounting for variables as well. One complication found is also that the better off need less funding in the first place. Which makes some sense upon reflection - parents who are illiterate in the local language for whatever reason would be incapable of providing "baseline" assistance in knowledge transmission. Asking for 100% equal outcomes would clearly result in a procrustean bed but counterintuitively equal opportunity does not require equal input costs as convenient as it would be.
This awkwardly also highlights ignored externalities and implied awkward questions in ways essentially nobody is comfortable is with the implications of especially regarding free choice and perverse incentives where the "best" option still has messed up implications.
I think it is in large part due bad spending priorities at schools. Several years ago I lived small rural community and the school district passed a heavy levee on homes to pay for a new football field and a far larger than needed grandstand/bleachers and field lighting. Turns out the high schools roof was needing replaced at the same time but they purposefully waited until they got the levy for the field through first to put forward the one to repair the school because they figured that they could get them both that way but could not get the field after replacing the roof.
The highest paid government employees in most states are football coaches for the state schools? Why? I thought schools job were to educate not cause brain injuries in their students? Why pay millions of tax payer dollars earmarked for education for someone to coach a game that injures the mental capacity of the students. Why not hire more professors with that money? why not pay teachers more or fix facilities buy material and equipment make teachers not have to spend their own money on basic supplies?
> The highest paid government employees in most states are football coaches for the state schools? Why? I thought schools job were to educate not cause brain injuries in their students? Why pay millions of tax payer dollars earmarked for education for someone to coach a game that injures the mental capacity of the students. Why not hire more professors with that money? why not pay teachers more or fix facilities buy material and equipment make teachers not have to spend their own money on basic supplies?
I used to feel this way too, but my understanding is that investing in sports programs tends to _bring in_ more money for universities, on net. I don't think it's accurate to consider it as trading off against academic investment.
At any rate, this is a bit tangential: American universities are the best in the world, so the conversation is more about high school and lower, where our educational outcomes lag by some metrics.
This is high school. They don't need to attract students, they need to educate the ones they have. Considering the risks football should not be in public schools at all. Sure at university it pays for itself but that is a different level with different conditions
Strictly speaking what you're saying is true, but it ignores other realities of the association of wealth and education outcomes which are implied when folks are talking about these subjects.
One of the best places in America to get education happens to be free: the public school system of Lexington [1]. But you'd be hard-pressed to get a house there for less than a million. Secondly, every other student in Lexington happens to have private instructors on the side. It's funny, if you randomly walk into a Starbucks in Lexington, chances are very highly you'll see an elder person with a young person training for standardized exams.
The thread is about government (specifically, the congressional gop) underfunding education spending. The effects of parental wealth on educational outcomes is a complete non sequitur.
That seems like an odd metric. Why should education spending scale with the size of the economy?
Regardless, you could also argue that -- similar to healthcare -- dollars in is not a great metric anyway. Are we getting the best outcomes for that money? We certainly aren't for healthcare, and my (admittedly incomplete) reading on this topic is that our K-12 education system is nothing to be particularly proud of.
I don't know how you're reading all of that into my comment, but my point is that the members of a political party dedicated to shrinking government to nothing isn't going to do much work. That's the shrinking.
I wish people could take a step back from the “shrink government” debate and focus on making laws more effective and efficient.
I could write a piece of code that adds two numbers but takes two days and all available memory to compute the result.
A lot of laws are on all levels of government from both sides of the isle are well intentioned but the costs surrounding the laws are prohibitive.
That doesn’t imply we need less laws, that doesn’t imply we don’t have enough laws, it means we need to take a hard look at where the bottlenecks are and streamline the process and to achieve the desired result.
If you look at the our American history, you will find that changes in party power happen much more frequently than it had in the first two centuries of the U.S. For many epochs of a decade or more, one party tended to hold sway in both houses of congress and the presidency, allowing much to get accomplished. Switches in party control of government usually followed rises in corruption/ineffectiveness that can happen to those who remain in power too long. In the last several decades, party control switches back and forth rapidly.
Filibuster is almost never used. It's occasionally threatened, frequently used as an excuse for not even trying, but rarely used. If it were used more often, it would elevate the debate around the bills under consideration. Congress doesn't even try.
The threat of a filibuster is enough to make it not worthwhile to bring legislation to the floor. "debate" is pointless when everyone's mind is made up.
The filibuster doesn’t need to be eliminated. It can serve it’s purpose if we hold to the original implementation: Make members read the phone book on the floor on Sunday morning at 2am instead of requiring 60 votes to end debate.
Tim Alberta's excellent book "American Carnage" covers this period in detail— the closest thing to a short answer on it is that the Freedom Caucus is essentially a second party inside the Republican party, and are hardwired into a scorched earth mode where they vote no to anything that has even a whiff of compromise to it.
This time was an extraordinary humiliation for Paul Ryan in particular because it should have been an opportunity to get lots of ideologically-motivated things done really quickly, and yet they failed to achieve even incremental progress on Trump's top legislative priorities, like repealing the ACA and securing funding for the wall.
The problem there was although they were stated to be priorities, neither Trump nor the Republican caucuses in Congress or the Senate actually thought either things were a good idea. Those weren’t ideologically motivated objectives, they were publicity motivated positions.
Okay, fair, but the end result is still a two year tenure starting in 2016 where the whole federal government was until Republican control, and almost no progress was made on anything. The big achievement was passing a set of unfunded tax cuts— it's got to be pretty devastating for that to be the high point of a career (Ryan's) built on being a deficit hawk.
Sure, but I suspect that deadlock was more to do with the specifics of the awkward relationship between mainstream Republican representatives and Trump in particular than a systemic problem. Ugh, as someone who considers themselves a natural (moderate) conservative it pains me to say this, but frankly it's just as well.
It seems like a good design to me. We don't want a congress that always votes along party lines, and if there is not a strong consensus, then keeping the status-quo is often not the worst thing.
Especially since law-makers have a strong incentive to further their own careers by introducing changes. This system forces law-makers to work harder to get change passed, it often must be a change that benefits more than just a simple majority.
"Keeping the status quo" sometimes is the worst thing, because it leads to tyranny of the majority. The majority has configured the laws to its benefit, and as the margin of its majority reduces, fights harder and harder to prevent minorities from seeking justice through the legislature.
It doesn't even require a majority: we've so predisposed the system to inaction that a small number of people can block it. To pass legislation you need the consent of the House and the President and a supermajority of the Senate. Any of those can stop a law in its tracks.
It's easy to say that we should favor not changing things, and there are definitely ways that we should force people to seek consensus. But when the current setup works against you, you can suffer for decades without getting relief, and it's not a good look to just shrug our shoulders and say, "Well, it's working for me".
The design incorporates the idea that we're going to behave with some sense of compassion and justice. There are, famously, four boxes of liberty[1], and if the majority uses the first three to the detriment of the minority, we'll find ourselves the target of the fourth.
So out of simple self interest it behooves us not to just say "the status quo should be hard to change". When we see an injustice, we should fight to change it, even when it's not to our own immediate advantage.
The Federalist Papers #10 [1] deals with this. The original design was made very different and was intended to blunt the force of tyranny by majority by splitting power centers. One major issue is that over the centuries, the system was changed to be like what Fed #10 warned about.
It is an amazing read, but the things that stand out to me are these.
1. Have diffuse/decentralized power centers to make it harder for special interest groups to gain power and control things. The last two centuries have had a tendency to move power from states to federal government; and from Congress to the President. So the balance of power has centralized.
2. Avoid a direct democracy because they tend to get subjected to demagogues. The direct election of senators was a major turning point in helping centralize power; since states became more and more irrelevant.
I am always impressed by how much Madison understood the nuances of political power and tyranny.
The only thing worse than the tyranny of the majority is the tyranny of a minority (oligarchy).
Generally though, I agree with you that we should all strive to vote for the greater good. We should fight against injustices even if they do not directly affect us.
I think that many of the issues come down to differing views of what more just: IE employment opportunities for a citizen vs. an immigrant, rights of a criminal vs. a victim, autonomy over one's body vs. a potential life. Those don't have easy answers.
Calling it a Republican House and Senate doesn't really do justice to the entire argument.
Yes, Congress is ineffective -- I think that's almost become an axiom at this point.
But it is often ineffective because of the rules it has adopted itself. The filibuster was removed for federal justices, and guess what? I think it's nearly 200 justices confirmed in the last three years, and while I don't remember the exact number during previous congresses I believe it's significantly higher.
As already noted, the filibuster is the root of a lot of this, but should the filibuster go away? McConnell famously told Reid he was going to pay for removing it, and he's made good on that promise, essentially transforming the entire federal judiciary with the power he was given. I view the filibuster as a check on the power of a tiny fractional majority -- should one party totally control everything that happens with a single vote majority? That essentially ignores the concerns of the rest. The filibuster at least forces some consensus building.
Better would be to have more than two parties. But how we could ever get there now I have no idea, the two parties in power have no intent of giving it up, and most people quite frankly are too stupid to even be bothered to vote, and those that do might be even more stupid in some ways. "Congress" is bad, "my congressperson" is the greatest ever because they get me money, and that seems to be the guiding principle for people voting these days. Maybe it always has been.
The only way we'll get a viable third party is to change our voting system. Allowing a voter to vote for only one of several candidates locks us into a two-party system, because it requires the voter to vote against all but one candidate.
Approval Voting simply allows the voter to vote for or against each candidate independently. (The instruction is to "vote for all candidates you approve of" -- hence the name.) "One person, one vote" becomes "one person, one candidate, one vote".
Instant-Runoff Voting (aka Ranked-Choice Voting, though there are other ranked-choice systems) is getting more buzz these days than Approval Voting, but AV is superior: much simpler to implement, easier to understand, and much less likely to return an anomalous result.
Congress should be ineffective the problem is the scope of their activity has grown so much... The US shouldn't have a strong federal government it was supposed to be executing enumerated powers, and granted those powers through amendments. We've given up on constitutional authority a long time ago - there's a reason prohibition required an amendment and the war on drugs didn't.
Prohibition didn’t require a constitutional amendment. The proponents wanted an amendment to make it more difficult for a future congress to reverse the decision. If alcohol was prohibited through legislative action, it could have also been restored just as easily. In retrospect, this strategy turned out to be pretty effective.
> In retrospect, this strategy turned out to be pretty effective.
You think so? It lasted all of fourteen years and did very little to stop the flow of alcohol throughout the country. And I believe it's the only amendment to have been repealed.
If it were a legislative action, rather than an amendment, I suspect it would have been more effective in the long term since legislation is usually more thorough and detailed than constitutional amendments.
I think their referring to the 2/3 of the house and senate that voted for it and 3/4 of states ratified it.
Weather or not the law had the desired effect relative to hypothetical legislative action is an open debate but undoubtedly could be overturned with less votes.
Sure it did. In the 1910s Congress' Commerce Clause powers wouldn't have encompassed purely intrastate commercial activity. The legal landscape was already changing, slowly, but in no way would a national law have been effective without a constitutional amendment. Heck, at that time the Supreme Court interpreted the ratified Prohibition Amendment not to apply to homemade liquor for personal consumption, despite the plain text of the amendment.[1] Compare that to Gonzales v. Raich (2005) where the Supreme Court permitted Congress to regulate, under Commerce Clause powers alone, homegrown marijuana for purely personal use.
Perhaps the line of reasoning you're alluding to is that, at the time, state and local prohibition laws were already so common that the Prohibition Amendment shouldn't have changed the effective legality of alcohol consumption for most Americans. But to maintain the status quo in perpetuity, locking in Temperance Movement reforms without defectors slowly eating them away, a national law was desirable.
[1] I'm still looking for the citation, but IIRC the reasoning was that the court wouldn't interpret the amendment to reach private, non-commercial activity unless it was explicit on that point; it wasn't just a cop-out textualist dance with the word "manufacture".
That is a far more well thought out argument than mine.
> But to maintain the status quo in perpetuity, locking in Temperance Movement reforms without defectors slowly eating them away, a national law was desirable.
But overall yes — this what what I was referring to. Even if I wasn’t clear on the state vs federal level, the overall argument that I’ve seen is that the proponents of prohibition wanted to increase the difficulty of rolling back prohibition. And if alcohol was banned through legislation, it would just take a single election (state or federal, depending on the law) to change things back.
Eh... I'm not sure about that. When Democrats had control of both houses + the presidency in 2008, they actually got some stuff done (which included the ACA).
The problem with the 115th Congress is that Republicans have done a good job getting their base to believe that various policies are bad for the country, but when push comes to shove even they recognize that: 1 - they have no viable alternative, and 2 - that said policies are better than nothing.
You should not conflate one party's inability to govern with Congress being dysfunctional overall. When the Dems get control of all branches of government again, I fully expect to see the logjam clear up for at least a few years.
As you note, when congress sees an urgent problem worth solving, they move quickly.
When I read, "congress is abdicating its responsibility", it seems to me people are just upset a law they like wasn't passed.
In other words, people want a dictator they agree with, rather than taking the time and effort to change the minds of their fellow citizens on any given issue.
Besides, inaction is often the best path to take, particularly when there isn't a clear winning idea.
It's not an artifact of division necessarily -- it's that the US government, structurally, has an extraordinarily high number of veto points.
eg in federal legislation: the House (majority); the Senate, representing increasingly tiny numbers of Americans (supermajority, often: cloture); the president, and the supreme court.
Political parties have very intentionally created the deep divides in the electorate. It's not something that just happened, it was something that was made to occur for the benefit of the politicians.
The power of political parties has _greatly declined_ in the last 50 years. Do you think perhaps more powerful parties had a longer-term outlook and were more willing to compromise?
Personally I don’t think the decline in Congressional power has a single cause. But the decline of political party power is surely one.
Sure, but it would be more useful to attempt to understand why the system incentivized politicians this way. If everyone that engages with a system can be blamed for doing something wrong, then the system needs to be rethought.
Concretely, I think we should prioritize campaign finance reform and lobbying. It's only a start, but a potentially important one.
> The center is there for the first party that chooses to leave its entrenchment.
Unfortunately, that just isn't so. The evidence of the last three decades has been that every time the Democrats compromised a little, the Republicans just moved further to the right and re-entrenched themselves.
The republicans effectively demonised the ACA, even though it was basically the compromise position (as it was quite similar to what Mitt Romney did in Massachusetts). I would love some examples of democrats doing that.
Would same-sex civil unions count? Or women and gay people in the military? There are a ton of social issues that society has moved dramatically leftward on; the fact that I agree with them doesn't mean I'm unable to step outside of my biases and understand why a conservative could just as easily make the claim that the left is intransigent.
But we are not seeing further-to-the-left arguments on marriage rights. It's not like now that same-sex people can marry, people are pushing for plural or animal marriage.
There is a movement for polyamorous marriage. A city in Massachusetts just recognized that arrangement for domestic partnerships. I think, like with same-sex marriage, most people would struggle to think of a reason to be against it that isn't rooted in appeals to tradition.
Note that the dissent in Obergefell (the case ruling that states had to recognize gay marriage) actually explicitly said "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."
Not related to marriage rights but it’s pretty obvious that trans rights is the next big issue that’s being pushed nowadays. There was also that whole forcing businesses to make cakes for gay weddings thing (don’t remember the details but it was a whole controversy about rights of businesses to refuse service vs constraints due to discrimination laws).
The above comments are about people in Congress constantly pushing farther right. Congress could've legalized those at any time but didn't. Courts did.
Gun control and the "Gun Show loophole" comes to mind. Avoiding background checks for private transfer was the compromise position for requiring background checks for sales from FFLs.
Very much this. There hasn't been a gun rights "compromise" (or proposal for one) where democrats gave anything back in congress in ... well never. It's always more restrictions of existing rights.
Compromise implies both sides give and take, and in the case of gun rights, democrats have only taken.
I know a lot of liberal gun owning people. I have a hunch this is like environmental issues. I think many conservative want to support environmental issues but since it clashes with more government control, it get's thrown under the bus.
> I know a lot of liberal gun owning people. I have a hunch this is like environmental issues. I think many conservative want to support environmental issues but since it clashes with more government control, it get's thrown under the bus.
The American political system doesn't support a la carte ordering, it only has prix fixe options. If your priority is some main course, you might not be able to get the side you want with it.
>Very much this. There hasn't been a gun rights "compromise" (or proposal for one) where democrats gave anything back in congress in ... well never. It's always more restrictions of existing rights.
This is actually a very good point. I wonder what the response would be to a Democrat-authored bill that (say) demanded universal background checks and proof of a firearms safety course completion and mandatory insurance like a driver's license that ALSO banned any restrictions on large magazine size and removed any restrictions on fully-automatic weapons, or something similar.
Seeing how compromise didn't work and the history of abuse some of the restrictions you gave have seen (i.e. poor availability of classes, failure to issue in reasonable time, concerns about abuse of psychiatric diagnoses, or attaching a monetary cost to the exercise of a right) many will no longer settle for anything but the repeal of all restrictions on the right to bear arms.
Imagine carrying free speech insurance.
Most accept drivers licenses however the constitution grants the absolute right to travel in the same way it grants the right to speech. This has actually been used by the ACLU in an attempt to challenge no-fly lists, and hopefully drivers licenses will also be challenged.
America has by far the most relaxed gun laws in the western world. Most other countries simply ban ownership of most guns outright.
The current situation IS the compromise. And it's pretty stupid I agree. But, there are no states that ban guns and plenty of them want to.
There is no hyper political, highly targeted, industry funded political action group just like the NRA on the side of banning guns.
After every mass shooting in this country democrats have to fight tooth and nail to get even a tiny consideration of regulation in response to human tragedy. And even that usually fails. In what world is that rational? In what world is that not compromise from the left?
Our country was founded with gun rights, and 100 years ago gun ownership was nearly unrestricted. Our country is unique in the fact that we have a constitutional right to arms - most don't.
At every step, law-abiding gun owners have given up rights and gotten nothing in return.
The great irony, to me, is that almost all of the "successful" gun/weapon control campaigns have been rooted in nearly blatant racism. Yet repealing those laws born of racism isn't something the left is willing to entertain.
No, it wasn't. The current legal interpretation that most gun-rights advocates swear by has existed for a relatively short time, after the lobbying efforts of groups like the NRA.
According to this article[0], the early US adopted numerous restrictions on guns based on preexisting English common law, and during the revolutionary war even forbid anyone from owning a firearm without first swearing a loyalty oath to the government[1].
And of course 200 years ago, slaves weren't allowed to own guns for obvious reasons[2]. Of course, slaves weren't considered persons at the time either.
It doesn't appear that there was ever actually a time in the US when gun ownership was completely unrestricted.
>According to this article[0], the early US adopted numerous restrictions on guns based on preexisting English common law, and during the revolutionary war even forbid anyone from owning a firearm without first swearing a loyalty oath to the government
Which is not what I was talking about. I was talking about gun types not regulations to get a gun, store a gun, registration or anything like that.
>And of course 200 years ago, slaves weren't allowed to own guns for obvious reasons[2]. Of course, slaves weren't considered persons at the time either.
I wasn't clear. I meant any free adult not anybody.
Some slaves were slave drivers. White slave drivers had access to guns. It is not clear if slave drivers who were slaves had guns but it is possible. This of course would be an exception if it did happen.
The average slave of course would not own a gun.
>It doesn't appear that there was ever actually a time in the US when gun ownership was completely unrestricted.
Again, that is not what I was arguing. There doesn't appear to be any restriction on the type of gun you could own. There were other restrictions like not shooting cannons inside of city limits for example. People were allowed to own cannons though.
No, that's not what I was saying, but it's not exactly false, either, now that you've brought it up. George Washington himself went on several forced disarming campaigns in the first few years of the US (notably, before 2A was ratified). It's a persistent myth that gun ownership was unfettered and unregulated before the 1900s.
> There is no hyper political, highly targeted, industry funded political action group just like the NRA on the side of banning guns.
You may be unaware because this isn't an important issue to you but just off the top of my head the Brady Campaign, Everytown for Gun Safety and the Coalition to Stop Gun Violence all have major financial backing and support firearm bans in one form or another.
Plenty of states do effectively ban guns. Like states that don't let you leave home with a gun except to very narrowly defined shooting ranges. Or states that require guns to be secured, even overnight when you're in your own home. Hard to use it for anything in those cases, let alone self-defense.
I think the problem here is that the left has learned that compromise positions leave gaping holes in the legal framework to the point that the laws that do get passed become largely useless.
Sure, we can compromise on the background check requirements such that certain types of sales don't require background checks... well, ok, but then that just means that the people who would fail a background check will buy privately or from a gun show, and their access isn't really diminished, so the so-called "compromise" was little better than not passing a law at all.
It still boggles my mind that if I want to drive a car, I have to be tested and licensed, and carry insurance, but if I want to buy a device specifically designed to kill, I can just walk into a store, and after any weak legally-mandated waiting period, walk out with a gun I don't even know how to use, let alone use safely.
And all this because it has to do with an amendment to the constitution that was never intended to mean what people have since "decided" it means. The current legal interpretation of 2A only exists because of lobbying groups like the NRA.
> well, ok, but then that just means that the people who would fail a background check will buy privately or from a gun show, and their access isn't really diminished, so the so-called "compromise" was little better than not passing a law at all.
This is a gross misunderstanding of the law. If you run a firearms business, you must have an FFL. If you have an FFL your must perform background checks for transfers regardless of where they occur.
Private party transfers are only from one non-dealer to another and must be infrequent / not a source of income for you. Purchasing a gun on behalf of another (such as to avoid checks) is called a straw purchase and is illegal regardless.
If you read the Heller decision, they go back to original intent and the common meaning of the words at the time the 2nd was ratified. This idea that we've only had gun rights since Heller is itself a modern invention.
On your automotive analogy - anyone can own a car. I can gift one to my 5 year old and so long as it stays home, he's 100% legal. Driving it is a privilege that's regulated. Likewise, carrying a gun is often regulated as you wish - and beyond reasonable levels in several states.
The "gun show loophole" is nonsense. Very few guns are transferred that way, and essentially zero "crime guns" were purchased this way. They were all either acquired via straw purchases (already highly illegal) or completely above board in a state with lax reporting requirements to the background check system. Ironically, the gun industry and gun community are, generally, huge supporters of addressing both of those issues.
> I can gift one to my 5 year old and so long as it stays home, he's 100% legal.
Not everywhere; in some (many?) states, even cars intended to sit idle on private property must be registered (usually for a lower fee), and you can't put a 5 year old's name on the registration. Regardless, giving your 5 year old a car and saying he "owns" it is laughable.
Your analogy doesn't really make sense, either. You could give your 5 year old a gun to keep in his room, and while that's a terrible idea, it'd be difficult for you to get in trouble for it. Either way, your 5 year old isn't gonna be able to walk into a car dealership and buy a car any more than he could walk into a gun store and buy a gun.
> Likewise, carrying a gun is often regulated as you wish - and beyond reasonable levels in several states.
No state regulates guns as I wish. I won't elaborate much because I doubt we're going to find any form of agreement there. I will say that I support the repeal of 2A (not like that will ever happen), and at the very least I'd like the states to have the power to regulate firearms in whatever ways they see fit.
> This idea that we've only had gun rights since Heller is itself a modern invention.
I don't think anyone's claiming that we didn't have gun rights before 2008. But Heller (and other cases over the last 80? years or so) have narrowed the kinds of restrictions that are considered constitutional. Heller finally taking the position that 2A protects gun ownership regardless of participation in a militia was a big deal as well.
Putting aside a lot of nuance and complication, both parties have an 'ideal state' in mind. They will make decisions that move the law closer to that ideal state. It'll be happening all the time, neither of them think the ideal state is compromising with the other.
And if you want an example of the Democrats doing something similar, maybe the immigration situation? It is also nuanced and complicated, but the appearance isn't that the Democrats are consistently working to uphold the consensus position as found in the law. There is a lot of demonising.
But yet again, while both sides may feel this way, when measured objectively (as has been done) it's shown that almost all of the sudden polarization of the past 30 years has come from the right continuously moving further right.
Have they really moved farther right, or do they seem farther to the right since a lot of politics have moved to the left over that time? See same sex marriage, for example.
> According to the system, both parties have been on a trajectory toward more “extreme” positions since roughly 1970, the natural result of which is more polarization. However, the parties do not quite share equal responsibility for this: Republicans have moved about twice as much to the right as Democrats have to the left. Also, while the Democrats’ leftward shift was essentially a one-off event, the result of many moderate, Southern Democrats losing their seats in the early 1990s, the Republicans’ rightward transition has been continuous and steady.
Although to caution too-credulous interpretation, the DW-NOMINATE scores are derived from roll-call votes, so they may be biased by the issues brought up for such votes.
I have seen this claim about the left at least as much as about the right. I would definitely appreciate someone who could bring facts to the discussion.
And a one sided list of things that party X did is just emotion.
(Also, a good rule in honest debate is to never argue unless you have at least two advantages to the opposing position. Such that I hate Windows, but I wish Linux had their GUI... This helps bridge the "us" and "them", and gets to a much more accurate result)
Look at the number of filibusters executed by party over time.
The republicans have led for decades. They are responsible for each vast increase, especially during Obama. Always pushing it further and further toward nothing getting done in the name of never compromising.
There's a chart I saw once, that's I can't find now. Hopefully someone else can, with the description below.
It seems that the vast majority of comparisons of left/right in the US are comparing either how many people identify with one side, or how each side views the other. This particular chart however was part of an article that tried to enumerate the actual political stances of major parties (in the US, and I think it included UK ones as a reference point, but not sure about that - may have been a separate part in the same article) and show how they changed over time.
The structure of this chart was a vertical line graph, where "now" was at the top and the past was at the bottom. I think it went back to around 2000, maybe a little earlier. Being vertical it was rather distinctive and I'm hoping this jogs someone's memory so it can be found again.
On it, over the past 10 years or so, the Republican party has only shifted slightly to the right, while the Democratic party veered way way way to the left.
People can think whatever they, that doesn’t make it real. Your argument is a false equivalence. Even if both sides do it, it’s not of the same proportion and that matters.
Objectively, Republicans are not compromising, they are often explicit that they are waging a scorched earth zero compromise negotiating style. The heritage foundation wrote the template for the ACA in the 70s as an alternative to Medicare expansion. It was then Bob Dole’s plan when he ran against Bill Clinton, and was Dole’s alternative to Clinton’s health plan. Then Romney passed it in Massachusetts. But when Obama consciously tries to compromise and meet in the middle instead of participating they say it’s communism. They spent a decade to repeal a plan they invented.
Similar with global warming. Cap and trade was a republican idea. Where have they compromised? Instead they are demonizing all of science to shift the conversation to absurdity.
How about the 2008 stimulus. Obama has to fight tooth an nail for 800 billion even though economists say the output gap is $1.5 Trillion and the stimulus needs to be bigger. But Obama agrees thinking when it’s clear more is needed more will be available. He underestimated how much Mitch meant it when he said “the single objective is to make Obama a one term president” and was willing to let the economy struggle if needed. Then Trump gets $3 trillion with Democrats compromising all over the place.
The opportunity probably isn't for an existing political party to move to the center - it's for a third party to come up the center, capitalize on the two major parties being so obsessed with making the other lose that they can't articulate a clear reason why they should win, and capture the voters who have become cynical about politics altogether.
I agree completely. I really think the current state of affairs is the only likely conclusion of a winner takes all system in a society with instant, nationwide communication.
Not voting for someone who can win is "wasting your vote" so people won't do that. Which, essentially, locks us into two parties. When the two parties know they are safe from a third, they're naturally going to be driven by the extremes and not the middle ground, because the national, fast-paced media lives off controversy between the extremes, which just ratchets it up farther.
IMO, the fact that we had political parties rise and fall (via third parties) in the past was more a historical artifact of not having a national, near-instant media to make sure things were polarized the same way nationally, nor could they let you know that a third party vote was a waste. In a sense it was more like local politics today, in that things weren't uniformly hyper-partisan, and a third party could make headway regionally and become a real contender before the rest of the country knew they were a wasted vote.
Although ranked-choice voting (more precisely, instant-runoff voting) is a step in the right direction, it will not solve this problem. Yes, it lets voters safely express maximum support for a third-party candidate that’s guaranteed to lose. But as soon as that candidate gains enough support to become a viable threat to the two major parties, the game theory doesn’t work out so nicely.
Approval voting is a much simpler system that gives better results.
Interesting info! I suppose I could have said what I really intended to say: "We'll never have more than two parties in the FPTP system, so we'll need to change that first."
If there is something that both the left and right leadership can agree on, it is that there will never be ranked choice voting. It benefits the Democrats and Republicans (the leadership) to have a 2 party system. So I don't see either of them trying to change that.
I wonder if the voters would have a lasting appeal for this, though. While I would appreciate more consensus-building and agreement in our government, there are quite a few left-leaning positions that I will just not budge on, and consider the centrist approach on them to be just tolerance of and pandering to bigots. Not sure how many share that attitude, but I bet there are quite a few on both sides of the aisle.
> The center is there for the first party that chooses to leave its entrenchement.
1. What sort of compromises with the modern Republican party do you expect the Democrats to have to make, that they haven't already been making?
2. And what will their reward for making them be? Another supreme court appointment unfilled until the president is a Republican? Another crappy compromise healthcare bill that maintains the status quo? Another decade or two of inaction on climate change?
> The center is there for the first party that chooses to leave its entrenchemen
No, it's not; political opinion in the US is closer to a bimodal than a normal distribution; the center of the current Overton Window is a place where you lose your base while not meaningfully appealing to people inclined to vote for your opponent, plus even if you succeed momentarily when (probably not “because”) you do that (e.g., Bill Clinton), the result is shifting the near pole of the Overton Window toward your opponents’ position which almost invariably results in a similar movement of the far pole maintaining the width of the Window.
A lot of the dynamics of this is tied to the structure of our electoral system; more effectively representative, multiparty systems have different dynamics.
> They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness.
They were always intended to be both. Since there had to be such a powerful entity within the government (the power exists, so it has to be put somewhere), the best course of action to prevent any whim of politics doing irreparable damage is to pit congress against itself so that any actions it takes are generally too slow for transient whims to affect it.
The filibuster doesn't help the situation and seems like a mechanism designed to encourage obstruction. Until we do away with it, I fear we'll be stuck with the status quo.
The real problem is that there are just two parties that hate each other to the core. In a multi-party system, parties would be forced to compromise and find agreement with other parties, and this would become normal.
So get rid of congressional districts and instead fill the House according to proportional representation.
You don't need to go that far, just getting rid of gerrymandering (and thus, "safe" seats) would accomplish much the same in terms of forcing candidates to appeal to a broader constituency.
Any kind of district system will still result in a two-party system. You need to get rid of the district system. A district system only represents the majority opinion in each district, so a very large minority of Americans will effectively not be represented. It also pushes people to vote for the "lesser evil" instead of voting their conscience.
Madison thought it highly unlikely that people who held immense power would not choose to use it. The Framers' model (and fear) was Rome, and much of our Constitutional design is intended to prevent an American Caesar. (One of the reasons Washington was universally revered was because he acted so contrary to what everyone thought was human nature.)
"Ambition must be made to counteract ambition" he tells us in Federalist 10. The idea of a legislator who would derive self-worth not from actually doing things (good or bad) but rather by approbation from their faction solely for making the other side mad was not something they thought possible.
Ironic, given that these same tendencies were very present around the fall of the Roman republic. Rome had a similar gridlock of opposing positions of power, and similarly fell into a state where little could be accomplished due to the regular undermining and vetoing.
Edit: Since most replies are talking about the empire, I just want to reiterate that my comment was regarding the end of the Republic, which imo is a more analogous situation to modern USA. (Not to say it's identical, of course!)
I wanted to provide a little near-contenporary source material to back up this answer which ought to be read by everyone. From Suetonius' The Twelve Caesars:
"The violent death of Caligula [the previous emperor] afforded the Romans a fresh opportunity to have asserted the liberty of their country; but the conspirators had concerted no plan, by which they should proceed upon the assassination of that tyrant; and the indecision of the senate, in a debate of two days, on so sudden an emergency, gave time to the caprice of the soldiers to interpose in the settlement of the government.
By an accident the most fortuitous, a man devoid of all pretensions to personal merit, so weak in understanding as to be the common sport of the emperor’s household, and an object of contempt even to his own kindred; this man, in the hour of military insolence, was nominated by the soldiers as successor to the Roman throne."
Ironically, the Gauls who would sack Rome multiple times were more “Roman” than the inhabitants of Rome proper. The Gauls had strong chieftains and military generals, whereas Rome had weak ones.
Rome also had decades of civil war where a majority of the ruling class was either a) killed in said wars or b) killed after the wars in proscriptions by the victor. The only people left in the Senate were either weak-willed or allied to the "winner". The proscriptions by Marc Antony basically wiped out whatever resistance was left after the death of Julius Caesar. Couple this with the fact that the populace by-and-large just wanted peace, you can see why Octavian was able to rise.
In relation to the parent point, Octavian also went through great lengths to _appear_ to be acting at the will of the Senate. He was "first citizen" and all rights and protections granted to him here "granted" by the Senate. Whether this was under duress or just abdication for the sake of peace is debated.
There are some parallels between the current situation and the fall of the Republic, but there are for more differences. We are more at the Gracchi stage than the Caesar stage at this point. So there is hope!
America was thought to be an exception because both parties used to be more centrist with wide overlap, but it seems they've become increasingly polarized, which makes the whole system less stable.
Despite their fashionable references to Rome, I think the English Civil War was a stronger influence on their thinking - a king's attempt to establish untrammeled authority leading to a parliamentary backlash that was equally untrammeled.
Well, Congress is only able to abdicate their responsibility because we have departed from our "Constitutional design." All 3 branches now write law, not to mention other unelected government agencies, so Congress is now free to avoid doing their job and point the finger at someone else instead.
Not to mention our new 4th branch of government: bureaucracy. They do tremendous work, but I don't think they should have the power to draft regulations that have the force of law.
The US Congress has incredibly low approval ratings, as a whole. But each individual congressperson enjoys surprisingly high approval from their constituents. I guess Madison just didn't see that those two things could happen at the same time.
It was a good fear. He missed the possibility that congress could choose to not pass laws or enter a revolving industry door where they consult on laws they did.
It's a feature not a bug. The entire system was designed s/t it is incredibly hard for anyone in Washington to do anything. There are good reasons for that.
Weirdly, Mazars actually shrinks what I believed was the scope of Congressional power, where in the one instance the House actually attempted to exert equal balance, there now exists a four-part test for validity of presidential subpeonas. Congressional power is squeezed from all sides whenever exerted.
Congress merely reflects the candidates that we elect and the underlying political sentiments of their constituents. Since they serve shorter terms than judges and are more localized than the President, it's hardly surprising that they are more impacted by the political divide.
If Americans cannot agree on anything, therefore, congress cannot either. People blame congress, but it's the American people who are ultimately responsible.
It may be that the 17th Amendment changing the appointment of Senators to a popular vote from elections by state legislators was a mistake, as "anti-democratic" as that may sound, it may be a good principal in a Republic. The house weighs the popular opinion, the Senate, the will of States.
the senate itself existing was a mistake. It only is fair in the context of some kind of relative equality of states, letting low-population states grind policy to a halt is inherently antidemocratic.
(by design! the point was to give smaller states a say and that itself is the problem, it is a bad idea to let a minority be able to grind all action to a halt. You say "but what if they do something I don't like" and the answer is vote them out next time, elections should have consequences and winning an election should result in a government that is able to accomplish policy. Setting it up deliberately to deadlock just because they might do something you don't like is a terrible idea and needs to stop being viewed as some kind of virtue of the design of the American system. Just because the founders did it, doesn't mean that it is a good design, they had lots of bad decisions... like slavery, and setting up the government to allow slave states to have equal control to the free states.)
if you assume some kind of relative equality of states, then on the whole the senate should approximate the house, and you can easily come to the conclusion that we really don't need the senate itself at all. abolish it and go to a unicameral system.
Similarly the parliamentary system where the executive is chosen by the majority of the legislature is a much better idea - again because it results in a government that is actually able to accomplish policy.
there is very much a reason that none of the other countries whose constitutions we wrote over the years (Japan, Germany, etc) use the American system. Everyone in power realizes that the American system is terrible and doesn't produce a mandate to govern.
It was a necessary compromise to get 3/4 of the first thirteen states to ratify the constitution. I'm not saying it's great now, just pointing out why it exists.
It's ironic, isn't it? Our system was designed as a compromise, and has resulted in compromise becoming essentially impossible (or at least unpalatable.)
It's amazing that it worked for as long as it did.
We must inspect your assumption that the Senate is unfair because States differ in population. I believe this assumption reflects an inordinate weighting of American citizenship above State citizenship in the union. Historically it could be argued that State citizenship is central to the Republic, whereby territorial governments voluntarily entered the Union as a State, where in exchange for subjugation under the Federal, the State's insterests would receive equal representation in the Senate.
The solution is not to remove the Senate/House combination that balances the will of people and the will of States, but for larger states to break up into smaller ones.
> We must inspect your assumption that the Senate is unfair because States differ in population.
Oh we must, must we? Why's that?
It's not an assumption, but rather an assertion, based on the observed outcomes of this system in action, and the strife it has caused (literally a civil war, and gridlock in the modern era).
The assumption here is that representing states themselves is in any way a desirable goal. Just because the founders did it, does not mean that it was a good idea. Being able to observe outcomes and change your course of action when the results are not good is the mature thing to do. We do not need fetishism of the actions of people who are 200 years in the grave, the founders themselves advised against such a thing and gave mechanisms for the constitution to be changed. Unfortunately these have atrophied along with the rest of the american federal system.
States have lots of other ways to express their will: they have unitary power within their territory, they have the ability to lobby congress and the people, and they can sue if they believe their powers have been unfairly abrogated. The senate as an institution representing states directly has been dead for over a century. It is now an institution representing the people in those states already - but a very undemocratic and unfair one.
> The solution is not to remove the Senate/House combination that balances the will of people and the will of States, but for larger states to break up into smaller ones.
Which is a tacit admission that you think equality of states is a necessary and worthwhile goal to make the Senate work properly. You just disagree about how to fix the current problems with the Senate.
Sure, dividing states up to a more equal population is one way to make it work. Probably not really possible when New York City alone has the population of what, 15 or so states combined? Do you suggest fracturing the city into 15 states? That would be incredibly awful to administer.
Very simply, the Senate is just a failed design and cannot be reasonably fixed without inflicting even more cumbersome forms of government just to try and preserve it for the sake of preserving it. It needs to just be eliminated.
Not that there is any plausible means to reach any of these goals of course, Congress would not approve of states dividing themselves up since that would disadvantage Republicans. Politicians will never vote to remove their own structural advantages even when it is the democratic thing to do.
Yes, I think States as an entity have worth beyond the population (number) they contain. States embody a collective decision to form a cohesive institution of self governship. Your view appears to be that that decision should be diminished without the consent of those who made it. It is paramount to how the U.S. has successively cheated and stolen land and power from Native Americans. The right to locally self govern is important, maybe the most important aspect of this American experiment.
Our system of government really, really wasn't designed to handle politically polarized parties. We've had partisanship forever but mostly it was about competing for patronage rather than ideology. Then after the Progressive reforms of the turn of the 20th century we had a long period where each party had their liberal and their conservative wings that meant low polarization.
>Our system of government really, really wasn't designed to handle politically polarized parties. We've had partisanship forever but mostly it was about competing for patronage rather than ideology.
The first hundred years of the US tend to disagree with that statement
Really? What issues of principle would have the Democratic Republicans or the Federalists not been willing to abandon for the sake of the pork barrel, at least after Andrew Jackson? I will grant that the Republicans and Democrats initially had substantial ideological differences they weren't willing to compromise on but that immediately resulted in a civil war and then we were back to the normal state of affairs.
While congress is idle and obstructionist in a way of refusing to allow votes as opposed to "most bills get a failing vote even after ammendments" I wonder how much of the dysfunction is a matter of failing to scale governance.
> They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness.
If Congressional lockdown was useless, it would've been fixed. Clearly, there's plenty of interests that favor a Congress/Senate that isn't able to move legislation forward.
"As with so many controversial court rulings like the ACA mandate case, our courts keep getting put into the decision because of the massive failure that congress is. Congress should either fulfill the promise or not, or whatever. instead the judicial bodies end up making legal judgements with big ramifcations that largely should be left to the legislative body.
"
Agreed. Congress is way too addicted to political grandstanding and partial fighting instead of making laws to clarify the situation. It seems pretty clear that with all the 5-4 divisions the Constitution is not precise enough to decide these things unambiguously.
> our courts keep getting put into the decision because of the massive failure that congress is
We need more Civics classes for students.
Branches of the Federal Government being put into the decision because of a massive failure of another is exactly why we have 3 branches. It's rock-paper-scissors. Checks and balances. Which is why, for instance, people squawk so much when the executive branch imagines itself new powers it was not granted.
I disagree with your assertion that this "is exactly why we have 3 branches".
The normal idea behind "checks-and-balances" is that if one branch exceeds their authority, the other two branches can serve as a check on abuse of that authority. The argument being made by GP, though, is pretty much the opposite: Congress isn't overstepping their authority, they're abdicating it. It's basically like they want to be 'checked' by the Supreme Court, because they don't want to have to take a clear stand in the first place.
I feel like that's implied by the "balance" part of "checks and balances."
It's also simply the fact that politics abhors a power vacuum. If one branch of government abdicates its power, that slack has to be taken up elsewhere.
The people have ceded their authority in this regard as well, through their own apathy and cynicism. Democracy requires an educated and engaged voting populace that actually believes effective government can exist and politicians should be qualified and held up to a standard.
Many of "the people" have gotten lucky because SCOTUS went "their" way over the last few generations. Part of that lies with Executive choices for judges and some has been a wildcard (Kennedy, Roberts on ACA, Gorsuch for the last couple of weeks).
It could all spin based off of the next appointment.
But The Founders clearly thought Congress should be somewhere else than yelling from the sidelines.
I don’t have kids so I have no idea what is thought/taught anymore, but this is the sort of thing I was exposed to repeatedly starting in late grade school through early high school. I found government boring back then so I didn’t elect to take classes beyond the basic curriculum in that area.
I've recently adopted both Francis Fukuyama's vetocracy thesis as well as Ezra Klein's prescription for majoritarian rule.
Yes, both are major oversimplifications to a complicated situation, with path dependencies and subtle counterintuitive cofactors. But it's good battle cry.
We need more accountability, more transparency, more democracy.
A systems engineer strives to create functional feedback loops. Today, that means closing the gaps in our broken feedback loops. Consent of the governed, and so forth.
There are countless situations in which Congress tries to punt its responsibility to the other branches. If they want to be a responsibility-free elected TV pundit class that lives high on the taxpayer hog, then let's amend the constitution accordingly. Congress just tries to delegate responsibility to the other two branches so it can get back to fundraising, "investigating," and grandstanding.
But isn't this literally Justice throwing the ball back to Legislature? "We understand why you may want this to be true, but if that's the case, you need to do it specifically"
Just a couple notes here from a person of tribal descent (I am Wasq'u, a tribe in the PNW), for those trying to make sense of it.
This ruling, as I understand it, resolves a narrow technicality—but that technicality has potentially enormous implications.
The Court has only decided that the federal [EDIT: state! sorry!] government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK—this is what the press means when it calls this territory "Indian reservations." They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
Further narrowing the ruling, my understanding is that this only applies when all persons involved in the crime (e.g., the victim) are also tribal citizens.
But, this ruling does open the door to a lot of those types of questions. It is possible we see several cases related to the sovereignty of these nations over the next few years, possibly greatly expanding the scope of the jurisdiction of the tribal governments.
Unfortunately there's really no "return" of land. These headlines are siezing on the above technicality mentioned, which simply formalizes Tribal jurisdiction.
The big news is precisely that formal recognition of Tribal (and, notably, treaty-conferred) authority.
I don't think so. The rape case really just acts as a vessel to provide standing to litigate the larger question of the reservation.
Without the rape case they wouldn't have had a reason to challenge the questions about the res but now that the Supreme Court has resolved the larger question it's applicable across the board.
It could have just as easily been a case about shoplifting or murder or anything else. In fact, last term there was a case similar to this that was about a murder, where the defendant was sentenced to death by the state and they argued that the state didn't have jurisdiction. Gorsuch heard the appeal in the circuit court so recused himself from the SCOTUS case and the belief it was deadlocked 4-4, so they took this case and made the ruling with a full nine Justices.
There's a difference in that now major crimes between tribe members have to be tried in federal rather than state court. Minor ones would be tried by tribal courts, which already exist.
"The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK"
The issue at hand was state government prosecutorial jurisdication, not federal. From the article:
Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.
Yes, that was the question at hand but that doesn’t mean it doesn’t have implications for lots of other things that the courts will have to clarify now.
There actually is very little for the court to clarify; reservations exist in lots of other places and the procedures and handling are well established. The unclear part that has been resolved is whether this century-old agreement for those swaths of Oklahoma is still in force, and apparently it is, so it's a reservation. From there on it's procedural copypasta.
The only possibly-unclear thing I see is reimbursement of recently paid state taxes by tribe members, I think they can claim back some.
> The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens
Did I misunderstand what the case was about? I thought the case was that the state government has no jurisdiction and only the federal government has jurisdiction.
Or maybe I'm confused because that's what the previous (4-4 deadlock) case was about and this one is actually bigger.
Ruling found that state government does not have prosecutorial jurisdiction, the federal government does and could still choose to prosecute the individual at the root of this case in federal court.
Yeah I was wondering what exactly was meant by "reservation".. in my experience you can't, as an outsider (non-native), just go, and live on the reservation. So unless it's unlike any reservations in my state then there must have been something I was missing.
Back in the day, enrolled members of some tribes could sell land to non-members. I think most tribes prevent that now. Land sold to non-members became Fee property that can be owned by non-members or sold to non-members.
Depending on the reservation, you will find plenty of non-members that own property within the reservation.
Does this depend on the reservation? I've heard of reservations where you basically couldn't build a permanent structure or get a building loan due to how the tribal land rules work.
It's kind of fascinating having these micro-nations that aren't quite nations within our borders, I should read more in to this subject.
Reservations are governed by their tribal government, often with side-agreements/compacts with local or State governments.
Real property within reservation borders is either deeded land or trust land. Deeded land can be sold without restriction. Trust land cannot be sold without approval of the US Bureau of Indian Affairs and/or the tribe.
Natural resources in reservations are usually managed by the tribe. Including hunting and fishing. Some let non-Indians or non-members hunt/fish some don't.
Except for a few exceptions, living on Indian reservations is no different than living anywhere else. Tribe made laws/rules do not apply to non-members -- unless the State or Feds says so. These are usually hunting rules. For example, the Colville Reservation in the State of Washington restricts non-members from hunting large game (deer, black bear, etc.) even if the game is on deeded landed. They can do this because there is a state law that says the same thing.
Also, generally tribes or tribal owned businesses cannot be sued in state or federal courts unless they agree to be sued (same/similar as States and the Federal government). Thus, persons have few rights when it comes to contract disputes, personal or workplace injuries, labor issues, and so on, that involve tribes or tribal owned businesses. Something to think about if one is considering employment or otherwise doing business with a tribe or tribal owned business.
"Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies."
It's how China works as far as I know. It's a pretty good system; it makes housing cheap (one of the worst problems in the US) and it's good for farmers because if you go bust, you can return the land to the village who owns it anyway.
What happens after 99 years? Are they expected/obligated to renew for a reasonable fee? What's preventing them from refusing to renew the leases after 99 years, and keeping the property (and whatever improvements on top) for themselves? It might not be an issue for the first or second generation of owners, but you'd expect the uncertainly to hurt the resale value of the property as the 99 years approaches.
Reminds me of a certain piece of land that Britain has a 99 year lease on. Hard for them to end well without a contractual option to extend under reasonable conditions.
Yes it can hurt resale prospects, the longer into the lease you get. At the same time it can also lower upfront acquisition costs. Something to know when you get into it.
you'd be surprised how common this agreement is. A lot of the skyscrapers in manhattan are/were built with this arrangement, where one party owns the land, and leases it to the developer who owns builds and maintains the building. Very interesting issues came up in some condos where the owners decided to spike the ground rent when the term was up. Also, as I understand it, pretty much all of the land in China is managed like this, as well as Singapore.
If you think about it, there isn't much of a difference between a 99 year lease and a 1-3% property tax.
> This ruling, as I understand it, resolves a narrow technicality
That is literally all of the SCOTUS rulings. It's petty listening to bright minds discuss minute details. The fact that technicalities have far reaching effects is a sign that the system is broken.
I don't see that this some sign of systemic dysfunction. Given the significant amount of time and effort that is expended before a legal dispute is considered by SCOTUS, it stands to reason that the arguments would be sufficiently nuanced at that stage.
If the highest court of the land doesn't sweat the details, why would lower courts or any other aspect of our legal system be reasonably expected to do so? In any reasonably complex system (legal or otherwise), it should make sense that the technicalities do matter, and that the supreme decision making body in that system should consider those carefully due to the outsized influence it holds.
Putting aside the question of what makes a "tecnicality," the fact that technicalities are able to be put forth and argued until a decisionmaker makes a ruling, rather than having a party decide unilaterally how to resolve the technicality, presumably at the peril of their opponent, means the system is working well.
I think this a result of survivorship bias by design, not that anything is broken. If a case had little effect, it wouldn't be worth the court's time. If a case were easy to resolve, a lower court would have done so. So that only leaves important yet difficult and complex cases.
I almost think they “like” to word things in this way so they can side step the larger ramifications of their decisions to certain people.
It feels frustrating to those outside the law. But that’s always been true of the law, as far as I’ve read.
Also remember that our legal system is a direct inheritance of the English legal system we separated from in the 1700s. There’s actually more history to our laws than to our country. So to some extent the years of buildup contributing to confusion stem back pretty far into the past. We would have a lot of work ahead of us to reinvent the quirkiness out of the system.
It helps if you realize that the English legal system developed as an alternative to trial by combat: https://en.wikipedia.org/wiki/Trial_by_combat. The point isn't to empower judges to make decisions that have the best "ramifications" "to certain people." It's to reach a decision that people who violently disagree about those "ramifications" are nonetheless forced to accept the result because it was reached in accordance with agreed-upon rules.
That's why so many decisions come down to careful parsing of words and "technicalities." A case that reaches the Supreme Court will usually have generated intense controversy about what is the more desirable result. Thus, the focus is on reaching a decision that people can't argue with because of scrupulous adherence to rules and doctrines.
> The fact that technicalities have far reaching effects is a sign that the system is broken.
I find that an utterly hilarious thing to say in a forum with a large number of highly technical people, and another large number of people who understand complex, nontechnical systems.
Do you know if this means that the land on which buildings are built could be taxed by the tribes?
I live in the desert in CA and here most buildings built on Indian reservations pay a yearly leasing fee.
It would be such a huge power shift for the tribal nations. It's one of those things that could ripple through the system or hit some stone wall I'm unaware of. Really interested to know what will happen.
> They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
You're 100% right, sorry, I read through your answer too quickly. It was the land for trust thing that really covered my question and I wasn't thinking of fee land in that way. I'm very ignorant about this topic, thanks for setting it straight. :)
It's so weird how sentences so significant are often "protecting" the rights of terrible, terrible people:
> McGirt, 71, has served more than two decades in prison after being convicted [...] of rape, lewd molestation and forcible sodomy of a 4-year-old girl. McGirt [...] did not contest his guilt in the case
I'd be interested in learning who was involved in McGirt's proceedings and why. Did they mean to actually get this guy free (which, to be fair, at his age could be a charitable act in itself), or did they just think it was as good a chance as any to get this old treaty back on the table? There is a book and a film in that story.
Everyone deserves a vigorous legal defense, even the most reprehensible. If the accused or convicted are exempt from the rule of law, so are those who are accused or convicted by mistake, corruption, or abuse of power. Competent and committed legal defense for everyone defends the rule of law as it's applied to all of us.
Unlikely. I can’t think of any immediate reasons that federal courts would consider anything different to the states, where something so heinous as rape of a child is concerned.
> Competent and committed legal defense for everyone defends the rule of law
I agree wholeheartedly, but in practice this often doesn't happen, for a multitude of reasons. Legal representation costs money in most countries, and most lawyers don't particularly enjoy defending guilty people (obviously they do it anyway, but it's a bit like having to fix a '90s PHP website when your passion is Python 3...). Hence my curiosity about the backstory of this particular situation going on for so long (20 years and all the way to SCOTUS is a lot of work).
Definitely on the same page. I'm just glad there are dedicated people doing the hard work to hold government's actions under the light of their own rules. There's way too much room for improvement in the system(s).
You should look into Ernesto Miranda. He did horrible things but the Supreme Court said that he incriminated himself without knowing his rights. Because of this, his conviction was overturned and now cops have to read ‘Miranda’ rights to everyone they arrest.
> and now cops have to read ‘Miranda’ rights to everyone they arrest.
This is a common misconception, but the requirement is not quite that broad. The police are not obligated to read you your miranda rights immediately upon request—it's possible that they might not at any point read you your miranda rights.
What they cannot do is begin to question or interrogate you if they do not read you those rights. Any questions they ask without having read you those rights are at risk of being thrown out in court. Police will usually interrogate people after an arrest, so will often read them their miranda rights. (Edit: I also found out that any spontaneous statements you make are also fair game, if they didn't ask a question or prompt the statement)
But, it's not an obligation for every arrest. If you are arrested the police might not read you your miranda rights, and your rights probably haven't been violated if they don't question you.
If you are ever arrested, and interrogated, DO NOT TALK TO THE POLICE BEFORE YOU CONSULT YOUR LAWYER. Never, ever, talk to the police without speaking with a lawyer first. Here's an excellent video that explains the reasons why better than I can. I highly recommend this video: https://www.youtube.com/watch?v=d-7o9xYp7eE&t=4s
I do know about Miranda, I was tempted to mention him but I didn't want to end up implying this sort of sentence is always about bad guys - "often" was already a bit too strong for my taste.
Highly recommend "The Five Civilized Tribes" by Grant Foreman to better understand the period, as well as "A Traveler in Indian Territory" to add some color. The OHS or Oklahoma Historical Society has a wealth of information, too.
Seems like all they did was say the feds get to punish native americans rather than state officials. Where's the sovereignty?
Nearly all US presidents, including George Washington, led genocidal campaigns that burned down entire towns or otherwise committed crimes against humanity in the name of expanding the colonial lands of settlers.
1,289 comments
[ 3.2 ms ] story [ 389 ms ] threadMcGirt v Oklahoma (9 July 2020) pdf:
https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf
https://cherokeeregistry.com/blood-quantum/
Getting your tribe you just started recognized without any of the treaties in place is about the same level of effort as getting your new country recognized. I don't see TSA accepting Sealand passports.
0: https://www.bia.gov/as-ia/ofa
1: https://www.law.cornell.edu/cfr/text/25/83.11
Tribes are legally foreign nations with a very, very close treaty relationship.
Re: taxes, the US government will make you pay all your taxes. If you pay taxes to a foreign govt then you can get a waiver for what you paid but if the tribe gives you a good deal the US govt will still demand the rest.
[1] https://www.nytimes.com/2019/01/26/us/politics/allergan-eye-...
That's the rule for US citizens. You would no longer be a US citizen. Presumably the rules would be exactly the same as they are for current tribe members.
So it doesn't really work.
Yeah, you're right. In Canada, "status indians" get a tax exempt card to avoid sales tax at least. I didn't realize that in the US all American Natives are actually considered US citizens and are taxed federally just like everyone else. Only the tribe itself is tax exempt.
That is according to: https://www.thebalance.com/do-native-americans-pay-taxes-417...
You would also still have US citizenship. You don't lose that unless you formally renounce it.
It had to do with patent challenges through inter partie reviews (IPR) Basically Allergan transferred the patents to the tribe and said “they are sovereign and thus can’t be challenged through IPR”.
Reservations vary from quite well off (I personally knew a guy who basically had a few hundred thousand in trust from his band when he turned 18 - money from resource extraction on tribal territory) to reservations that resemble shanty towns in developing countries.
Can’t lump them all together.
Law and geopolitics is not code. Treaties only have the meaning that signatories read into it.
> Does the government just accept that Israel or Germany get to decide who are Israeli and German citizens?
Certainly not!
Israel has its uncertain relationship with the occuptied terrotories / Palestein.
Germany had the East/West occuptation.
China has its disputes regarding Taiwan and Hong Kong.
Like I think the US would respect a Taiwanese citizen presenting a PRC passport for instance. The PRC considers all RoC citizens to be PRC citizens and will fill out the relevant documentation for them.
Having Ancestry dot com or similar service tell you anything is not accepted by any tribe.
Civil legal jurisdiction over non-native individuals is somewhat broader, but still subject to various complex legal limits.
https://fas.org/sgp/crs/misc/R43324.pdf
Google "palm springs indian reservation map" and it will show you the checkerboard.
https://www.pscondos.com/palm-springs-indian-lease-land/
Another somewhat common practice was splitting up reservations into homestead sized blocks and assigning each block to an individual Native American adult male in traditional common law property ownership ways, which didn't map to any Native American social/economic norm.
There was a lot of effort put forth by the US government after the Reconstruction to coerce Native Americans to act like white Americans. Which was bizarre considering citizenship wasn't fixed until 1924. You would have thought they would have led with that.
It's actually very rational, cynically speaking: you don't want to extend the franchise until you're sure that the new guys will "vote the right way", so to speak.
https://en.wikipedia.org/wiki/Puyallup_people
...though probably not until after the election.
Extremely well put!
The tl;dr is that, yes, indeed, half of Oklahoma is part of land reserved for the Creek in a 1833 treaty. And almost two centuries of subsequent jurisprudence and state development has (unsurprisingly) completely ignored that with effectively no legal basis. Neither Congress nor the state of Oklahoma has ever lifted a finger to try to make this right.
Basically, this is the Supreme Court saying that enough is enough, this can't go on, and telling the relevant governments to get their shit together and figure this out.
No, Injuns aren't coming for Tulsa.
Over native americans on tribal land. The state still has authority over everyone else. And the tribal police don't have authority over them. It's convoluted.
If? SCOTUS literally just said it's valid. Today.
As far as what's going to happen, presumably the state legislature, congress, and the Tribal government(s) are going to come to some kind of deal. I'm no expert. I'm just reacting to the vaguely racist paranoia in the headline that has people freaking out that they'll suddenly be Ruled by Indians.
It was a genuine question though; I was wondering if someone more knowledgeable than I knew how it would be handled :)
Including several on the bill of rights.
The current American social climate is not ready, willing, or interested in meaningful reparations. I doubt the tribe will be successful in suing for any damages.
Huge percentage of population has some Indian blood.
The exact definition can be worth a lot to many people.
Let the drama begin!
Every tribe can determine their own criteria, and while some do consider how much "Indian blood" you have, that seems to be mostly because the US government heavily promoted the idea 100 years ago: https://chicago.suntimes.com/2018/10/20/18426433/warren-ance...
https://www.voanews.com/usa/native-american-tribal-disenroll...
https://en.wikipedia.org/wiki/Dawes_Rolls
None of that is new.
https://news.ycombinator.com/newsguidelines.html
EDIT - a note about the sarcasm - it is NOT OK to use pejorative or racist terms sarcastically.
- Some readers feel that using such words should be avoided simply because it's emotionally hurtful to certain individuals. Or because it reinforces beliefs they find abhorrent. Or for the pragmatic reason that it tends to end constructive discussion.
- Other readers feel that having policies against using such words does more harm than good, and stifles free and honest discussion. And coddles individuals who are too easily offended, when they should in fact use it as an opportunity to mature.
I think HN's audience skews more towards that first group. I'm sure other forums exist that skew the other way.
However, I think your comment would have been more impactful if you coolly made your point and linked to the WaPo article for further reading instead of using that inflammatory tone and language.
EDIT: I originally incorrectly wrote "All they did was interrupt the trial of an accused rapist." in addition to the above sentence.
And, they didn't interrupt the trial. He's been in prison for more than two decades for this crime.
The crime part seems largely insignificant to this ruling. It was mostly just a proxy for a larger question at hand of who should have handled his case.
It's unlikely this guy will suddenly go free given his admission of guilt.
If I missed something, feel free to point it out...
http://www.emersonkent.com/map_archive/native_american_tribe...
Maybe counties would be a better unit to consider.
> Native Americans.
Whether that encompasses multiple tribes or not, doesn't change that.
In many ways we're seeing the same thing with Tibet and China. It's horrific.
That rump Indian territory applied to be a state as the Sequoyah, but it was turned down, so it was merged with Oklahoma territory to become the State of Oklahoma.
https://www.pbs.org/newshour/nation/todays-racial-wealth-gap...
(I'm not disagreeing, just trying to highlight one of the fundamental challenges here...)
[1] https://www.whose.land/en/
Also, no where near 50% of the US was ever granted in treaties. The vast majority was simply taken militarily without compromise.
How far back into the history should we go?
Because we signed treaties with the tribes, which are now semi-sovereign entities as a result.
https://idioms.thefreedictionary.com/for+once
I'm not American, so don't know the topic in details. I have found this online:
"The main goals of Indian reservations were to bring Native Americans under U.S. government control, minimize conflict between Indians and settlers and encourage Native Americans to take on the ways of the white man." [1]
[1] https://www.history.com/topics/native-american-history/india...
https://en.wikipedia.org/wiki/Treaty_of_Dancing_Rabbit_Creek
> Lands (in what is now Oklahoma) west of the Mississippi River to be conveyed to the Choctaw Nation. Lands east of the Mississippi River to be ceded and removal to begin in 1831 and end in 1833.
The reasons are as per my previous comments, and also as a tool to displace native population (in effect ethnic cleansing) and to grab land, as is for example the case of the treaty you mention.
We could certainly look at why the treaties were signed, but the original comment basically asked why we, modernly, should care.
In this case the US was engaged in very specific legal deals with these groups. Reservations grew out of that process.
Oklahoma was part of the Louisiana purchase, the US considered it their land for that reason.
The US signed treaties with the indigeneous population in an attempt to secure peace, not out of any sort of acknowledgement that they had to.
and by doing so, acknowledged that those indigenous populations were soveriegn nations. It doesn't matter why they signed those treaties, the only thing that matters is that they did.
You don't get to cancel a treaty just because the other party used to have leverage over you and doesn't anymore.
Yes. That's why we had to write treaties with them, to gain proper title to the land. Even if we treated those who signed the treaties as having more authority than they actually did, and if we treated the treaties as mere scraps of paper, those treaties were still seen as treaties with legitimate sovereign nations.
You can go as far back as you want and it’s still native Americans / native North Americans.
Vast majority of Native Americans, and estimated 90% died to disease. It was no more systemic killing than the plague in Europe, or coronavirus today.
>You can go as far back as you want and it’s still native Americans / native North Americans.
Go far enough back and you have empty land and Asian settlers.
As I understand it, it's not "special" status and more a result of the laws that were put into place when the land was "obtained" from Native Americans. Renegading on those treaties would be no different than the government repossessing your generations-owned land because "you shouldn't get special treatment because your great grandfather bought this land for $3".
Also, the verb you wanted is "reneging" from "renege" - to go back on a promise, as in when playing cards to go back on a promise to follow suit.
It really isn't that hard of a question to answer. If I legally own land, how far back in history should it go? Well, probably as far back as the entity that enforces legality says.
Why does this instance bother you so much? (I think I know why)
Even later than that I think? The government was fighting Geronimo in the 1880s, and my understanding is there was some intermittent fighting as late as the 1920s. I'm not sure about treaties specifically though.
You own quite a bit of fenced-land and have built some dwellings on it, a main home, a couple outbuildings, a barn, etc... you and your family farm it, raise livestock, hunt, fish, etc... and live quite well off the land without ever needing to leave or venture beyond the fence.
One day you see some strangers outside your fence, looking quite haggard, and ill setting up a camp using nothing but the meager supplies left in their vehicles, and what looks to be parts of the vehicles themselves...
Feeling compassion you attempt to help them, you open your gate and land to them, your home even, providing food, additional shelter, and even teaching them some basic things about your land and how to harvest, hunt, fish and generally live off it...
Fast forward a couple centuries, and now your "guests" have double-crossed you... taken all your land by force, persecuted your family while committing countless crimes including rapes, murders, and basically genocide on a continental scale.
In an act of "graciousness" during one of countless "treaties" you've been forced into accepting under duress - so that your entire family wasn't completely wiped from the face of the earth... you were "allowed" some small areas of undesireable land by your new masters where you be confined and kept out of the way without constantly needing to be harrased and supervised into submission... that was until those same people found out there was oil and other commodities buried underneath your newly constucted hovels... at which point they just pushed you into smaller and smaller areas, and took what they wanted from you and yours at-will anyway... I mean who could you complain to? their bought-and-paid for system of goverment and courts? the same that were used to persecute your family and steal your lands and heritage?
Now apparently some judges have decided to interpret the law as written, instead of posing for pictures in black gowns with pretty little wooden hammers...
In short, it's a little more complicated than that. Certainly there was much evil committed towards indigenous peoples in many places, though. However, the Aztecs weren't very nice to their neighbors and the fact that they were betrayed by the Spanish seemed like an apt comeuppance for a group led by bloodthirsty warmongering maniacs.
If I buy a TV that "fell off the truck", I wouldn't expect the manufacturer to buy it back from me. I wouldn't expect the manufacturer to buy it back from my grandkids either.
You could do the same thing I suggested albeit free for the Nation and the private landowner seller could be compensated by the government (which stole the land and resold it in the first place).
Regarding the realities of the situation in Oklahoma: as of this ruling non-natives on native land outnumber natives more than 4:1. If the government aimed to take or redistribute private property I would expect major unrest as a consequence.
If you sell that TV to a third party, ownership passes to that third party and the original owner looses all property rights on it. One of the few examples where ownership can pass from a party to another without the first party's consent (in neither express or requirement).
I imagine US law isn't totally different there.
Conveying property to a non-member does not remove land from a reservation, and this ruling does not void any conveyances. Whoever owns the land, owns the land. This ruling just makes it clear that all of the land within the treaty boundaries is still a reservation. I don't know all of the implications this will have, but I imagine a lot of things done by the state of Oklahoma assuming they were operating within the state of Oklahoma may need to be reviewed, given that they were operating within the Creek Nation.
For example, can the state allow formation of counties and cities within the Creek Nation? What about if said counties and cities were formed inclusive of only land owned by non-members of the Creek Nation?
Of course, the court mentioned that Congress is free to stop honoring the treaty, the only requirement is that it must do it explicitly.
Here is a recent significant case about this matter where the courts sided with the non-Indian private land owner regarding a permit he received from the county even though he refused to also go through the Reservation's own permit process: https://caselaw.findlaw.com/us-9th-circuit/1651530.html
Here's most of it:
"Tribe members who live within the boundaries are now set to become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts may be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling. "
I'm responding to "Some people don't like the rural states". Almost no one dislikes rural states for their natural beauty. They dislike them for the people.
Whether that dislike is morally wrong, or whether they should also dislike urban areas is irrelevant to my claim. All I was observing is that the people are why some other people don't like rural areas.
Yes, I know. Mine is https://yourlogicalfallacyis.com/tu-quoque
I'm not sure which reason is the majority, or if there even is a majority.
The reality is when you visit these rural places, talk to the people there, take part in their culture, take in the land...there is a lot these areas and those lifestyles have to offer. I was also surprised to find the people so charming, warm, and welcoming - and it dispelled my fears of expecting discrimination, which in retrospect I've only experienced in bigger American cities. It does feel comforting, raw, grounded, and yes like home.
> Suddenly the traffic and noise and confusion became too much. John and I took off on a year’s driving tour of gentler parts — both of us working from the road, a computer security consultant and a writer. We grew nearly silent in grief.
> We considered Asheville, N.C., and Santa Fe, N.M. But on a chilly, silver January day, we drove into the Ozarks of Northwest Arkansas. Though neither of us could put our finger on exactly why, this felt like our place. People back home were flummoxed: I heard them say a lot about white, rural Christians who reject outsiders and “cling to their guns.”
> But what city folk don’t know is how beautiful it is here, and by that I mean way more than you imagine. We’re surrounded by low mountains, bony shale bluffs, forest, shining lakes and mysterious twisting roads. The wide-open sky brings every bird formation and low-hanging planet into relief.
https://www.washingtonpost.com/dc-md-va/2018/09/14/i-was-yan...
We have a legacy to bear as well, but I think we honor our mistakes and errors as well as our virtues. On that note, one of the projects I’m most proud of in NWA is our massive bike trails network that connects the Fayetteville-Springdale-Rogers-Bentonville-Bella Vista area. This area was on the route of the Trail of Tears; this section of paths is the Northwest Arkansas Heritage Trail, part of the NWA Razorback Regional Greenway.
https://www.nps.gov/buff/index.htm
https://crystalbridges.org/blog/what-to-expect-for-crystal-b...
https://www.youtube.com/watch?v=-hvUCYRsUoQ
https://realestate.usnews.com/places/arkansas/fayetteville
https://en.wikipedia.org/wiki/University_of_Arkansas
https://www.nwarpc.org/bicycle-and-pedestrian/
https://trails.cast.uark.edu/
https://www.arcgis.com/apps/MapJournal/index.html?appid=0dd0...
Except the KKK. They are the bane of my home state, and it is my wish that I live to see each and every one of every group’s members publicly repudiate their membership and their belief in the groups. /rant
The small towns felt disturbing. Tulsa felt disturbing. The lack of minorities out in public was painfully glaring. It was all so very patriotic and dystopian. The unsettling overbearing flatness on the featureless terrain dominated my perspective of the area. Not for me, and I couldn't leave soon enough.
GP's description sounds like Eastern Oklahoma which is more similar in landscape and vegetation to places in Arkansas and Missouri like the Ozarks.
Your description sounds like Western Oklahoma. I lived there from age 12 to 20 and yes it's exactly as you describe, getting worse the farther West you go in the state. Dystopian agriculture.
Although Tulsa is east of OKC, I would put the dividing line between the East/West change in landscape around the Tulsa area.
The dividing line you describe is the area between the 98th and 100th meridian.
What does this mean?
We should then probably go back to Genghis Khan times and challenge the whole Eurasia, Persian inlands and a bunch of other areas around the world. To me, it seems like looking back and expecting special treatment many centuries ago is a minority trump card and instead we should be focusing on giving better opportunities, improving communities and looking forward.
At issue in this case is whether or not the United States are still bound by this promise. The majority's conclusion is that they are.
Recognized Native American tribes are sovereign nations. https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_Unit...
You might as well ask why European settlers aren't forced to assimilate into them.
The EU doesn't have representation in Congress either
This is a great way to frame it.
Although given the actual histories of countries that do have strict ethnic quotas for allotting political power, I doubt it would work quite so well in practice.
(I should point out that tribal membership is more complicated than just genetic background, and that it varies from tribe to tribe. Continuity from the existing tribal governments at the time until today need not have been explicitly ethnic.)
In any event, a tribe trying to build a nuke would likely be in the same scenario Iraq and Iran find themselves in, regardless of law or treaty.
Yes, the first nations are not the United States.
I'd personally prefer that we not go back to that.
Yes, exactly, why not the USians assimilate into the many Native nations they occupy? They've had literal centuries...
So... because they were conquering each other first, a technologically superior entity isn't allowed to conquer them?
As for lands, I don't know, lands all over the world have been changing hands since human beings learnt how to walk, most of the time after violence/war. It happened in 1500 when the concept of "nation" didn't even exist and the only way to say that a land was yours was to be able to keep it.
https://en.wikipedia.org/wiki/Siege_of_Fort_Pitt#Biological_...
Of course back then Might made Right. Aren't we able to see a little further than that any more?
My only reply in turn is, no, I don’t believe an entity should be “allowed” (by whom?) to conquer a nation in violation with their agreement just because they happen to have different technological capabilities
https://news.ycombinator.com/newsguidelines.html
Your argument is the standard, and ignorant, response. "They were violent TOO!".
The nature of Native American "War" was generally of a completely different nature than the white man take.
https://en.m.wikipedia.org/wiki/American_Indian_boarding_sch...
Funny you mention that because the majority of ethnic Mongols live in the jurisdictional equivalent of a reservation.
You raise a great question - why don't mostly-European settlers assimilate into American culture?
Reservations are not states that are "split off" from the US. They are independent nations which were mostly annexed by the US.
"In addition, because of past land allotments, leading to some sales to non–Native Americans, some reservations are severely fragmented, with each piece of tribal, individual, and privately held land being a separate enclave. This jumble of private and public real estate creates significant administrative, political, and legal difficulties." [1]
[1] https://en.wikipedia.org/wiki/Indian_reservation
https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf
"The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.
The judgment of the Court of Criminal Appeals of Oklahoma is Reversed."
Yeah, ok then. I guess that means we can start dunking Karens in rivers again: https://en.wikipedia.org/wiki/Desuetude#United_States_law
Sure, Congressional legislation could take away that land. That would be a lousy thing for them to do. Unfortunately since I doubt Native American groups are a big enough voting bloc, the only thing that would stop Congress from doing that would be enough negative public opinion from people who are not Native American. Hopefully there are enough people of that sort.
The "promise" to the Creek isn't worth the paper it's written on because they don't have enough military might to enforce the terms of the agreement. The US operates with them as it does with every one else, on the principle of "might makes right."
This is patently false, because the Supreme Court has ruled that the promise is enforceable.
> The US operates with them as it does with every one else, on the principle of "might makes right."
This is also completely false. Does the military answer to the President of the US because "might makes right"? Can Trump overpower any enlisted man in the military with a gun? The military obeys the Constitution because they swore an oath to do so, not because the generals have literal guns to their heads.
Culture and rule of law matter. The statement "might makes right" is a gross oversimplification that doesn't reflect our reality at all.
This is exactly the sort of thing that the Satanic Temple (not to be confused with the Church of Satan, etc.) investigates and does activism about. Well worth donating to IMO!
And, again I think, reservations are exempt from state laws/taxes and to certain extent able to make/enforce their own laws/taxes but they still need to follow federal laws.
I forget which particular drug does this, but a search brought me to meth and I found this article which says people feel 'invincible' and 'paranoid' and can't be stopped with non-lethal means.
https://www.cpr.org/2020/02/05/suspects-on-meth-are-hard-to-...
The effects vary per individual but the higher the dosage the more psychoactive effects are felt. I've seen a naked guy take on 8 DC cops....yes 8 police officers, and after being tased 3 times the guy finally went down.(first two attempts didn't take) But he was tossing grown 200-300lbs adult men like they were paper weights. The amount of force it took those officers to over come this one person on PCP was insane. Definitely not something you want to run into.
Then, have a hard conversation about what freedom means, and whether restrictions on it really lead to better outcomes. Usually not.
If you are skeptical of this, there are academic papers on the topic. You could also examine the history books regarding the rise of organized crime there. (For that matter, the rise of organized crime in the US was largely fueled by the prohibition of alcohol as far as I understand it.)
Helluva drug!
Not convinced I'd want society to have unrestricted access to that one.
A significant portion of the population consumes amphetamines on a daily basis and manages not to go on crime sprees. Perhaps it isn't the drugs which are the problem?
Edit: Dosage and route both matter a lot.
My point here is that many drugs have been demonized to a wholly unscientific degree and I often witness otherwise well educated and thoughtful people zealously perpetuating such myths without stopping to really think them through. IMO blaming bad behavior and even addiction on drugs is an easy out which avoids addressing the much more complicated underlying issues. Overdoses, abuse, addiction, and crime seem to me to be largely to blame on other systemic societal problems. As always, correlation does not imply causality.
Indeed, some drugs are so demonized that many who use them do get swallowed whole. Because it's what they expect, and part of the motivation.
A significant portion of the population is on restricted / controlled / monitored dosage / supply.
Compare my point about unrestricted access.
I'm pointing out that it's absurd to attribute problematic behaviors to the mere consumption of drugs. We severely restrict freedoms in the name of a battle against symptoms rather than address underlying causes. Worse is that our waging of the battle itself is a vicious cycle, serving only to worsen the very same symptoms that it supposedly seeks to address.
Edit: Actually, the progression in the US military was amphetamine to dextroamphetamine, and now also modafinil.
Higher doses do further reduce the need for sleep, however. And while they don't put me on edge, they do increase the risk of saying and doing risky things. But maybe that's because I'm bipolar.
What needs to be done is to de criminalize these things. One of the primary causes of the expansion of police power has been the "War on Drugs".
"War on Nouns" is a stupid way to run a society. Using law enforcement as your first line intervention for mental health, substance use and other such problems is a stupid way to use your resources to provide for the common welfare.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
That would keep the pesky federal government out of our personal affairs.
The idea that growing plants on your own land for your own consumption would some how fall under this legislative power is ridiculous. It's not "flexibility", it's fraud.
See: https://en.m.wikipedia.org/wiki/Gonzales_v._Raich
This is a powerful weapon that can be used for both good and bad.
If the federal government had to collect from the states, then there would be more oversight and power for states to say "wait a minute, why are we giving you money and then begging to get it back".
In theory, the result could be the same. Congress could still pass spending bills and give the money over with conditions. But in practice I think states would be in a more powerful negotiating position.
If everyone agrees about the major stuff, and you just need to finally make a decision on what color to paint the bike shed, democracy is great. A decision gets made, enough people are happy, and you move on.
But when you have real differences, you need a way to protect minorities against large coalitions of voters. Even if you aren't in a minority today, shifting politics (and divide-and-conquer politicians) will ensure that you are in a minority soon enough.
And it's even worse when society is polarized, because the coalitions form too quickly and too strongly.
But limiting the power of the majority is hard. The Constituion is genius because they recognized that and divded the power so many different ways. The protection of political minorities is much more important than the small amount of additional abstract fairness you get with direct elections.
And if there are "concerns about corruption" then investigate the corruption and put the perpetrators (if any) in prison.
Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.
But whose problems are these? The people who elected the state legislators who did them, right? There is a preexisting solution for that problem.
The voters can vote for representatives who are willing to compromise and appoint a moderate, or they can vote for representatives who are willing to engage in brinkmanship and then get nothing, and either way they got what they voted for.
> Not to mention that the holdover/compromise from the original way things worked (replacement appointment by the Governor) resulted in perhaps the most famous recent example of executive misconduct by a Governor: Rod Blagojevich.
...who then went to prison. Play stupid games, win stupid prizes.
We see federal representatives rewarded for brinkmanship. What makes you think state level electorates would act differently? (And in fact I expect there's lots of examples of brinkmanship in state electorates as well, I just don't follow them closely).
A representation system that fails to represent is dysfunctional and should be changed. When the same system consistently fails to represent its constituency, for the same reason, across various constituencies at various times, you can no longer fault the people. The constituents should not be punished for being born into a dysfunctional system.
Don't place the founders on a pedestal. They made tons of mistakes. The 3/5ths compromise was terrible, but it was encoded into the constitution. We learned from it and improved. State managed senators, while less overtly awful, were still quite problematic. Celebrate that the constitution can be changed.
So what if they do? It's what their constituents voted for. Who's to say brinkmanship is never an optimal strategy?
> A representation system that fails to represent is dysfunctional and should be changed.
So change it by voting for different state legislators.
> Celebrate that the constitution can be changed.
Just because something can be done doesn't make it a good idea.
If you're going to argue that "it's what their constituents voted for" you have to apply that evenly: the consituents got so fed up with this issue that they elected legislators who changed the constitution. No easy feat.
> So change it by voting for different state legislators.
They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.
> Just because something can be done doesn't make it a good idea.
This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.
It's two different questions -- does the system do what the constituents want (possibly yes), and what do we as the present day constituents want? The answer to which is not, from what I can gather, the status quo.
> They did, they made it such an issue that their legislators ended up ratifying a constitutional amendment.
Technically they didn't. It was the then-appointed Senate who approved the amendment (and by and large without having been replaced with different people), and they only did so out of fear of rising populist sentiment and what would happen if there was a constitutional convention in that climate. So they were basically doing their job and moderating populist sentiment, but apparently the anti-populist safeguards weren't strong enough to constrain populist sentiment from weakening them even further in that way.
> This applies equally in both directions. "It was that way first" isn't a merit, especially when "It was that way first" also applies to slavery.
Your argument was "celebrate that the constitution can be changed" as if any change is inherently good. But change can make things worse too. Before there was slavery there was not slavery.
Your main criticism also seems to be that the seats were going vacant, so the solution I would offer would be to hold a popular election but only if there has been no appointment within six months. Then the seat can't go vacant long but you're not, in the common case, taking away the seat of the states in the federal government.
> Technically they didn't.
Yes, technically—and in every other way—they did.
> It was the then-appointed Senate who approved the amendment
No, it wasn’t. The Senate doesn't approve Constitutional Amendments, state legislatures do.
The Houses of Congress, together, can propose Amendments, but they aren't needed for that, either.
It's strange to say this when you are proposing to take away their direct vote on the matter. If anything, the current system is what gives people the government they deserve, by having voted on it.
TL;DR: Just use range voting and put in the candidate with the highest rating. (Note that Senators' terms are staggered so there aren't two up from the same state at the same time, but if there were you could easily send the two with the highest ratings instead of the one.)
The 16th is the income tax one.
But if you want your country to be democratic and representing the people, then the people's representation (the House) should hold most of the power, and the representation of the states (the Senate) should only really be involved in states-related issues. For example, not being able to create laws, but only deciding whether an issue is a federal issue or a states issue.
Merely making senators appointed by states isn't going to fix all of the problems with the senate.
This would make the Senate more akin to the Supreme Court, though empowered to craft legislation instead of just rule on existing issues.
I understand some of the reasons changes were made, look forward to reading the this thread!
My quick thoughts on the matter is that since the changes, people have stopped paying as much attention to local(State politics) and focus more on Federal politics.
Edit to add information to support my thoughts: Look at the disapproval rating for congress, around 64%. But a large majority are incumbents. The feeling I get when talking to people is that the Senator from state X is the worst but my Senator from state Y is perfect/has flaws but brings value to my state.
The only interests states have are the interests of their constituents. States don't need representation, their people do - because states don't have interests, people who live in them have interests.
It should be noted that the original ideal, at the time the national framework was drafted, was for the Senate to represent the interests of oligarchs, couched in the language of it serving as a representative of the interests of the states. In that respect, it's still doing a rather swell job.
So then it shouldn't matter, right? The constituents elect the state legislatures who represent their interests, one of those interests is having US Senators who represent their interests, so their elected representatives appoint those US Senators. If your theory is correct then this should have the exact same result as directly elected Senators, because the states don't have interests separate from those of their constituents.
But it isn't, because elected officials do have their own interests. So then the question is, which process produces Senators that represent their constituents better?
US Senators have a personal conflict of interest in expanding the scope of the federal government in excess of what's in the interest of their constituents, because the federal government is subject to their control, and they personally want to control more stuff. State legislatures have the opposite conflict -- they want more state control, for the same reasons.
If you have directly elected Senators, there is no check on that conflict of interest and federal scope expands without bound. If you have Senators appointed by the state legislatures, these conflicts more or less cancel out. The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest, and the result is closer to the true interest of the constituents.
Meanwhile the House is still directly elected, which is a countervailing check on the power of "oligarchs" or what have you, because a federal law has to pass both.
> The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest
State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want, much like how the States Rights party only cares about states rights when those rights concern themselves with what their base wants.
So, I don't think you're going to get that kind of check and balance. What you're probably going to get is similar to my original thesis - that it shouldn't matter...
Except that it does.
If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused. The office would become:
1. A perfect reward for connected party insiders, who, compared to the status quo, don't even have to win an election.
2. That would not be accountable to the public.
3. And where the people the public can hold accountable (The people making the appointments) are two steps removed from their behaviour.
Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, what kind of blowback would the senators who made the appointment be subjected to?
They wouldn't be any. Just like how there's currently no blowback against Senate Republicans for the crazy train ride that Mitch McConnell takes them on. Everyone can shrug their shoulders, shirk responsibility, and blame the rest of the collective (preferably the guys holding safe seats) for the disastrous appointment.
Consider, also, all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power than executive bureaucrats currently do - where they couldn't even be overruled by the legislature - because they are the legislature.
That idea is frankly, terrifying.
Which is to say that they are interested in it at all other times, which is more than there is otherwise.
Meanwhile, what is it that you expect them to want from them? The federal government taxes their citizens (which they can do themselves) and then sends the money back with strings attached. What value to the state of the strings?
> If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused.
The vote should be public so there would be blowback against everyone voting in favor of it.
> Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, how will the careers of the senators that approved the appointment would be impacted by such an appointment?
This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.
> You've surely heard all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power, and you won't even have anyone to task for their behaviour.
They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem), and if they're really so bad then most state legislatures are elected every two years rather than every four for the POTUS so the backlash comes quicker, and the problems you're describing don't even sound that serious or different from ordinary politics:
> 1. A perfect reward for connected party inspiders.
Sounds a lot like getting to be the party's candidate in a safe district, and doesn't inherently imply anything good or bad about what kind of Senator they'll be.
> 2. That would not be accountable to the public
This is a feature. It gives a veto to a body that isn't directly subject to populist fervor.
> 3. And where the people the public can hold accountable are a step removed from that behaviour.
In other words they are still ultimately accountable to the public.
Politicians have agendas. Those agendas consist of things they want done. Nobody's agenda, (as we've seen from how the States Rights party actually behaves, when push comes to shove) actually consists of 'reduce federal power'. That's because 'reduce federal power' doesn't accomplish anything in particular. Nobody gets re-elected because they reduced federal power. People get re-elected for getting stuff done. 'Reduced federal power' does not actually tie into getting anything in particular done.
As such, it's occasionally a tool that you can use, for some particular goal, but is not an end in itself. (It may be an end in itself for you, but your viewpoint is not one that politicians do anything but pay lip service to, to get your vote.)
> The vote should be public so there would be blowback against everyone voting in favor of it.
Name one embarrassing senatorial appointment that resulted in serious blowback to the people voting for the appointment.
Just one.
You won't be able to - because political parties aren't ran by fools. They've made laundering unpopular blowback for group failures onto safe-district candidates into an art form.
> This is exactly the sort of thing that hasn't happened to the Supreme Court in practice.
In practice, it has happened to cabinet appointments. And again, in practice, nobody who votes for an appointment actually gets blamed for a disastrous one, for three reasons.
1. The appointee is their own person - the people voted for him can't predict the future, and aren't actually micromanaging his behaviour. When he does something awful, it's not directly their fault.
2. The appointee is everyone's responsibility, which is to say, he's no-one's responsibility.
3. Blowback laundering, see above. Safe-district candidates actively take credit for controversial, or unpopular decisions, to shield the rest of their party.
> They would be held in check by the House which would have to sign onto every law they want to pass unlike appointed bureaucrats in the executive (which by itself solves nearly the entire problem),
The House has just as much way to control the bureaucrats, if it chose to. By doing their job - legislating. If they are shirking this responsibility, considering that, perhaps, it may actually be happy with the job the bureaucrats are doing?
It is mind-boggling that you recognize that the power of appointed, unelected individuals is a problem, but think that the solution is to increase the number of, and power of appointees, and also giving them legislative power.
As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.
Consequently, the very clear direction of power shift in Germany has been - much more so than in the English speaking federations - an increase in federal power. (Also, a more recent prohibition on state deficits even accelerated that trend. State governments became enthusiastic about trading a little power for some extra money.)
When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing. I think it would be better to redraw the map and then for the states to have powers that make sense. But I think that is about as likely as a Democrat and a Republican to agree on the color of the sky on a clear day.
You already explained the reason this happens in Germany:
> the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house.
Solution: Don't put the same person in both houses.
> When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing.
State lines that run through the middle of metropolitan areas are the best kind, because they give people the greatest choice. If you don't like your state government and voting hasn't gone your way you don't even have to move across the country to change jurisdictions, only across the street.
Moving things to the federal level does the opposite. Things haven't gone your way? Too bad, there's nowhere to run.
That being the case, state prime ministers have a huge amount of power and influence, directly through mandates and indirectly through party politics. And usually, they want to to retain the maximum amount independence for their states.
And as far as federal legislation is concerned, one state prime minister is not enough to pass, or trigger, anything by himself. For state legislation, they don't have to pass through the federal goernment anyway, holding the parliamentary majority anyway (minority governments are extremely rare in Germany).
I'm not saying that we shouldn't have democracy, but we should acknowledge that it is far from perfect. As Churchill said, "Democracy is the worst form of government, except for all the others."
Democracy is also not a scale-free process. Very different dynamics play out in a democracy the size of a city versus a state versus the size of a nation.
It's hard to explain briefly, but basically all of these separations of powers are designed to avoid some of the worst aspects of democracy. They happen to look less "fair" in an abstract sense, but it's more important to have some practical safeguards than abstract fairness.
A lot of our most heated political battles are playing out at the federal level (and have been for a long time), and I think that's a consequence of the 16th and 17th Amendments. If some of these battles were playing out in the states, I think our society would be a lot less polarized.
If you want the senate to represent the states, you need the German system - there, the Bundesrat (Federal Council) has as its members the premier of the state (and, depending on the state's size, some number of ministers). Its members and balance can change whenever there is a state election (which are not tied, US style, to federal elections).
Now, while they will represent the interests of the state governments quite well, be aware of this - the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house. They can use their federal role to create an obligation for themselves as state ministers, and then tell state parliament "Oh, we have no choice; the federal government has said so. Please fall in line with this policy that I want and you do not want."
The paliamentary system is repugnant to the American sense of the separation of powers. But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant. This would multiply the problems above.
Perhaps having a recallable delegate who is effectively a member of the state cabinet without portfolio would be palatable; but still, such a delegate would be entirely at the mercy of the state governor (or it would work), and we then would still see the benefits to the state governor of creating legislative obligations that state congress still has to fulfil.
To me, it seems that the Australian senate does a good job of representing the people of each State. Since the interests of States can be said to be the interests of the people of each State (rather than the interests of the State governments) it therefore discharges its responsibilities adequately. The key here is in having many five or members per state elected at once using a proportional method like STV optimised for small electorate magnitudes. Since the majority of any state will be made up of a roughly equal number of blues and reds it encourages them to work together at the expense of the small number of extremists or against each other with centrists and sometimes fringe members. Constantly changing coalitions (per bill) mean negotiation skills become important. But how adaptable it is to a federation of 50 states - I don't know.
The purpose of the Senate isn't to represent the existing representatives in a state, it's to represent the interests of the state in the abstract. Having a red US Senator in a state with a blue Governor is no more a problem than having a red state legislature in a state with a blue Governor.
> But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant.
This is largely only true at the federal level and for a very specific reason. The federal government was not structured for the level of responsibility it has taken on as a result of the direct election of Senators removing the state veto on increasing federal scope.
In state governments you have an elected governor and legislature, but also elected school boards, treasurers, sheriffs etc. There are no elected positions in the Federal Department of Education, nor the Federal Reserve, nor the FBI. The constitution didn't contemplate that the federal government would grow to cover so many things, so they all fall under executive control. But the source of the problem isn't pushing too many things to the executive, it's pushing too many things to the federal government to begin with.
This sentence can be corrected by deleting every word after “Senators”.
The reason it would have a different outcome is because in a debate between 51 people, the chair doesn't have that much more power than the individuals. The federal government might be agree to set contributions according to fixed dollar values that the states can watch inflate down to a more palatable value, or they might agree to ignore certain sources of wealth in their calculations.
Discussions and disagreements will take on a very different flavor compared to the discussions and disagreements between a third of a billion players.
It is not apparent to me why this should result in an end to regulation of drugs as this subthread seems to imply it should. States can be just as interested in preventing drug use as the federal government - even more interested.
I don't know that an end to regulation of all drugs is in order, but if a majority of states (which make up the Federal government) believe cannabis has legitimate use, why then, is it still Federally illegal?
When a state doesn't pay up, what's the union government going to do?
Now, let's change the picture to directly-elected senators and direct taxation. Now, the money is collected directly from the citizens first, and then the government's relationship with the state is entirely different. Now, the state and the federal government are cooperating, and the sucker is the one not in the room: the citizen whose money is being passed around. The state just becomes a node in a hierarchy, rather than a formidable agent with its own powers and responsibilities.
It's actually very similar to negotiations with a public employees' union. The government and the union are "negotiating", but they are really on the same side of the table. The sucker is the citizen who's paying for it all, but isn't even in the room.
What magic method does the Federal government have to only make the right decision? The Federal government is just as likely to make the wrong decision as a given State. Probably more so, if a big government makes a mistake it is harder to correct than when a small government makes the mistake. And the effects are more far-reaching.
I would posit that America has less of a pot culture then it did a drinking culture. The history reads similar. First states took up the banner of morality. >In the West, the first state to include cannabis as a poison was California. The Poison Act was passed in 1907 and amended in 1909 and 1911, and in 1913 an amendatory act was made to make possession of "extracts, tinctures, or other narcotic preparations of hemp, or loco-weed, their preparations and compounds" a misdemeanor.[6] There is no evidence that the law was ever used or intended to restrict pharmaceutical cannabis; instead it was a legislative mistake, and in 1915 another revision placed cannabis under the same restriction as other poisons.[6] In 1914, one of the first cannabis drug raids in the nation occurred in the Mexican-American neighborhood of Sonoratown in Los Angeles, where police raided two "dream gardens" and confiscated a wagonload of cannabis.[19]
Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927);[20] Louisiana (1927); and Colorado (1929).[21] -Wikipedia https://en.wikipedia.org/wiki/Legal_history_of_marijuana_in_...
Now states are removing their laws and with an eventual push the Federal government will change their laws as well.
If we do ever manage to address the interstate commerce clause, we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).
The simplest way to deal with that would be to have those bodies continue to exist and publish "suggested" rules, which all the states could then adopt wholesale if they don't want to be bothered to do anything different.
Or a state could do something different, if they wanted to, which is kind of the point.
When the CDC recommends action for workplace safety in light of a strain E. Coli found in a crop grown in one state and sold in many, state health departments and state labor departments have full autonomy on how to handle the issue in their respective states.
If anything, the problem is that when there are no rules, some people (pilots) themselves were reckless and can endanger others. That is something to be solved by criminal courts, though.
> In the next several decades there will be un unprecedented number of elderly Americans living below the poverty line with no pension and medical issues they can't afford to fix
How about human flesh? Nuclear waste? Bombs? Bags of dangerous quantities of hard drugs [a la drug mule]? Endangered species?
Just like with free speech, "do anything you want for any reason" has the potential for abuse (both by a person to themselves and by other persons to other entities), and the majority of society is not comfortable with that. Sometimes we can be indoctrinated into tacitly accepting it after intense special interest lobbying, such as with handguns and cars. But there's probably no "greater good" aspect of being able to eat literally anything.
In terms of being a drug mule, if drugs were decriminalized, drug mules wouldn't exist, and most drug cartel activity wouldn't either.
People are advocating to decriminalize and allow people to harm themselves if they want, because it's their body and their choice. It's sad that people want to harm themselves, but ultimately, we do a poor job of stopping people, and by attempting to stop them, we've done considerable harm to our society (war on drugs, propping up cartels, etc.)
Which would also eliminate euthanasia as an option. If the law currently forbids euthanasia, then an "eat anything you want" law would still be invalidated when it's used for euthanasia, just like it would be invalidated for the other examples.
> if drugs were decriminalized, drug mules wouldn't exist
Cigarettes are not inherently criminalized, yet illegally selling cigarettes in bulk across state lines continues to be a problem. Illegal gun running also exists here, even for guns that aren't outlawed in any state. If there are cigarette mules and gun mules, there will probably be drug mules.
I disagree; whilst decriminalization is the way forward for the harmless / "soft" drugs, the hard drugs (e.g. heroin) are dangerous and destroy people and should not be freely accessible to anyone, anywhere.
What some countries do instead is provide heroin (or methadone) to people but only in specific locations, where they're provided with a safe and clean environment and equipment to do their thing, and where they can get help with their addiction if they want.
What I'm saying is that a lot of drugs are genuinely dangerous and should not become generally available.
What harmless drugs? No drugs, not even the ones that are currently legal (well, especially not some of them, really) are harmless. Prohibition isn't a bad idea because the prohibited substances are harmless, but because prohibition isn't an efficient mechanism of mitigating the harms (in fact, it aggravates them.)
- 2020 New Zealand cannabis referendum [1]
- 2020 New Zealand euthanasia referendum [2]
- [1]: https://en.wikipedia.org/wiki/2020_New_Zealand_cannabis_refe...
- [2]: https://en.wikipedia.org/wiki/2020_New_Zealand_euthanasia_re...
"The constitutional right for every American to eat anything they want for any reason"
Come on that's funny because of, you know, that other epidemic that'll be waiting if you come out of this one. The obesity one.
Each state can decide its own approach, which I think is the appropriate principle for governance.
It can, and has been - this is the origin of the so-called "Religious Freedom Restoration Acts".
https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_...
Now it's like "Well, it's not strictly in the constitution, but we like the idea, so if we squint a bit we can probably make a tenous case for it."
You mean like Roe v Wade? Under this ruling, if precedent doesn't matter, only correcting past injustices, Roe v Wade should be overturned immediately.
And yet "adverse possession" allows my neighbor to keep a slice of my yard, because he build the fence shortly before I bought the house (while it was unoccupied!) and I assumed it was proper after I moved in, and now that I've had a survey done and realized his fence is 5' off target, it's too late because he officially owns it!
I understand the difference, but I feel like it would be more proper to say "Unlawful acts performed long ago, are hardly ever enough to amend the law."
If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!)
None of this is related, either legally or in spirit, with the sentence you cited. The cited statement refers to an unlawful act, over time, attempting to override the law. In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal. The entire point of this ruling is that congress never passed a similar law to make this sort of action legal.
Yes, the point is there is a specific law that says this, and it's really not that unreasonable, since precise property boundaries are always ultimately conventional.
I understand the reason why someone might not trust the most local government (municipal, state, federal governments as appropriate) to manage the registry of landownership complete with dates, dimensions, notables features, and owners, but I find it really weird that problem of knowing exactly who owns what is effectively an orphan in the last resort.
But I guess on second thought maybe it's not that weird? Like if I buy stolen property from someone, and I have no idea that it's stolen, and the original owner comes along wanting it back, it's actually now legally mine, and I'm under no obligation to give it back.
But that's not exactly the same, because in this case the original owner has been harmed, but making the original owner whole would then harm me (an innocent bystander). In the case of the real property issue, "giving back" the land would only harm the person who "stole" it in the first place.
However! If the original "land thief" were to sell the property to someone else, then you're in the same situation. The new owner bought it in good faith, expecting the fenced-in area to truly belong to them, not knowing that the original property lines were drawn such that some of that property actually should belong to the neighbor. So then acknowledging the status quo means hurting the neighbor, but transferring the property back means hurting the new owner (an innocent bystander). At least in this case, the new owner could perhaps sue the old owner for misrepresenting the size of the land.
On what basis was the rest of Oklahoma not "adversely possessed"?
Anyway, as many others have noted, the problem isn't that the statute of limitations hadn't expired. What was actually happening was that the government was regularly breaking the current treaty that was in force. The ruling was that the government has to follow the law or change it but it can't just apply it however it wants.
I think the idea is that most people aren't computers processing laws as if they were code; most humans have to primarily go by what they see happening around them in order to decide what is ok. If they see lots of cars going down a road, eventually they assume that it is public property, even if they never check the public records to see if it is. Similarly with lots of other things.
But, crucially to the Supreme Court's majority decision, you have to have a law saying that this is so (for real estate or intellectual property or whatever), for it to be so, and Congress never did that.
https://www.atlasobscura.com/places/standard-oil-gas-station
EDIT: they have one each in 16 states, so not exactly “lone”
Prescriptive easement is not intended to apply to physical encroachment. It's intended to apply to right of way and ingress/egress issues. Otherwise, it would be an end-run around having to pay for the property.
I don't think that principle would apply in GP's case.
Adverse possession, however, may apply.
My jurisdiction does, of course, which is why I mentioned it.
> None of this has anything, either legally or in spirit, with the sentence you cited
I disagree, strongly.
I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".
Everyone acknowledges that the fence line was once illegal, in the same colloquial sense.
Yeah, you're right, the ruling in the linked article is different, and governs the creation or removal of actual laws. However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.
Moreover, he isn't looking for retribution, but restitution. He just wants his land back.
“prosecution”, but, no, civil law has statutes of limitations, too, in fact crimes without statutes of limitations are more common than civil wrongs without them.
See, e.g., this discussion of California’s civil statutes of limitations: https://statelaws.findlaw.com/california-law/california-civi...
Excuse me? What on earth does legal mean other than specifically being "in compliance with the law"? There is nothing colloquial about it, that's quite literally the formal definition.
>However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.
This is not true at all. The whole basis for a prescriptive easement rests upon the fact that it wasn't forbidden. If you object to someone's use of your land, then their fence becomes illegal and is indeed forbidden. To acquire an easement, you need to prove that your use was not contentious, ie. specifically demonstrate that your usage did not contravene any prohibition.
> If you can't see the analogy, I recommend you just shrug and move on.
I recommend you take a moment to reflect on how obnoxious this is, regardless of if you were correct in the first place.
After enough time, the neighbor acquired the title to the land through adverse possession and the fence became legal. Before that, the fence was illegal as it was built on property that the neighbor did not own.
No, what he is describing is adverse possession, which is different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)
> and is legal (depending on your jurisdiction).
No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.
I agree that this sort of law is bonkers, but understand that no one has a "right" to own land[0]. That's a privilege conferred by legal frameworks, and only works because we all more or less agree to abide by them and live in civil society.
[0] The US Constitution does not grant this right, and in fact the Framers were well aware of the divide between those who did and did not own land at the time, and considered landowners to be more deserving of participation in government.
I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused.
Is it to help turnover unused land through the generations and ensure it doesn't sit idle without active use by a rich person? What's the purpose of such an allowance in the law?
I'm guessing it comes from some old British reason.
I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good.
Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot.
So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers?
But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want.
The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter.
(And thus we have the philosophical basis for housing crises.)
AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court.
More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it.
[1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.
Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known.
I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs.
In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.
At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market.
De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent.
In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers.
On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.
Are you in real estate law?
Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.)
* Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing".
* Itzchak Tzachi Raz, Use It or Lose It: Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)
On what basis does he "officially own" it? Presumably there is a plat on file with your deed of title to your house and its lot that gives the boundaries of your lot, and another plat on file with your neighbor's deed of title to his house and its lot that shows the boundaries of his lot. Presumably both of those plats say the fence is on your property.
I know what adverse possession is. But there are specific conditions attached to it, which will depend on the particular statute in effect in the particular jurisdiction. For example, if the poster I responded to were to tell in court the exact story he told here--"I didn't realize the fence was on my property until I had a survey done, now I realize it and I'm bringing a challenge"--would the statute in effect in his jurisdiction bar him from seeking any relief?
English history gave us a very confusing legal structure, where there are statutes, (common) law, and equity -- all variously called "the law."
In other words, in both cases the laws, as written, were followed.
https://www.azcentral.com/story/news/local/tempe/2020/03/10/...
The whole thing is an interesting read.
A little absurd, yes, but I'm not sure adverse possession applies so cleanly to state boundaries as people seem to be implying in a few HN threads...
Based on this logic, I'm sure that the USA will be paying for all that tea they dumped in the harbor any day now...
https://en.wikipedia.org/wiki/Boston_Tea_Party#Reaction
Also, TFA notes:
> In a joint statement, the state, the Creek Nation and the other four of what is known as the “Five Tribes” of Oklahoma said they were making “substantial progress” toward an agreement on shared jurisdiction that they would present to the federal government. The other tribes are the Cherokee, Chickasaw, Choctaw and Seminole.
So I wonder whether more of Oklahoma could be affected.
And what about other states? I vaguely recall that the Mohawk have claimed a large chunk of New York.
Anyone can claim anything they want.
What is relevant here, and why this case was decided the way it was, is that the federal government and the tribe entered into a legally binding, clear contract.
Lands east of the Mississippi in exchange for a large piece of what is now Oklahoma, in perpetuity.
And Congress never explicitly reneged on that contract. Ergo, it still stands.
Should the Mohawk produce a similarly ironclad agreement regarding New York, they would then have a claim.
> In February 2005, the Mohawk Nation Council of Chiefs (a traditional Haudenosaunee government), the St. Regis Mohawk Tribe , and the Mohawk Council of Akwesasne signed an agreement with Governor George Pataki to resolve their historic claim to lands in Northern New York.
> Represented by the Indian Law Resource Center, the Mohawk Nation Council of Chiefs approved the agreement only after years of vigorous advocacy to ensure that the deal adequately protected the interests of their community and of future generations of Mohawks. “Through a lot of hard work at home and at the negotiating table, the Council of Chiefs has forged an agreement they can be very proud of,” said Indian Law Resource Center attorney Alex Page.
> The settlement agreement resolves legal claims first filed in federal court nearly twenty-five years ago. Those claims site repeated violations of a federal treaty confirming Mohawk land rights. Under the settlement, the Mohawks will receive lands and monetary compensation, as well as the opportunity to further expand their territory through purchases from willing sellers. The agreement does not include casinos or taxation, two issues the Mohawks successfully fought to keep separate from the land claim.
But near the end, I see this:
> Although legislation implementing the settlement passed the New York Assembly in 2005, the State Senate was not able to vote on the measure. We hope to see such legislation passed in the near future.
So maybe it's still in limbo.
Edit: From ciabattabread's comment, I gather that it remains unresolved.[1]
0) https://indianlaw.org/molr/landrights/mohawk
1) https://www.srmt-nsn.gov/resolve-the-boundary
The Supreme Court is essentially forcing Congress to take a stance.
People might have their legal doctrines, but it’s rarely as clearcut as you lay out and all the justices can only at most be “problematic faves”
You seem to be using it to mean “to a point limited sharply by his policy preferences”, which is pretty much the opposite.
https://www.srmt-nsn.gov/resolve-the-boundary
My city (Seattle) is undisputedly Duwamish territory. The way that’s been dealt with is to deny the Duwamish nation federal recognition of existing at all, so legally they have no claim as a nonexistent nation.
Such powerful writing by those we've vested great authority.
And yes, the SC should be fine with whatever congress does as long as laws are obeyed in the legislative process itself.
This came up in the Brexit controversies when the government tried to mandate an exit date as being immutable by future legislation, but the Speaker wouldn't have it. In that case some Brexiteers cried foul that it was overreach by the Speaker, but of course such a weapon could equally be used to make our membership of the EU irrevocable. It's a sound principle.
Interesting logic. Now do Roe v Wade. Are they going to overturn that too because it allows the injustice of the murder of millions of unborn Americans? Probably not. Funny how Stare Decisis goes out the window when it's an issue the justices care about, yet conveniently reapply it when present day utility outweighs historical injustice.
The court means justice as a violation of the law.
You mean it as a violation of your opinion of what is right and wrong.
Whether your like it or not, Roe v Wade, and Doe v Bolton are the settled court cases, and legal justice is what flows from that. Calling what is legal "unjust" because you disagree with it further reinforces the need for this decision.
Not changed by this ruling, but it strikes me as really odd that you can sentence someone to prison for that long, or that you would bother. Why not just say life in prison? If your state is 103 years old, saying anything about the next 1000 years seems ... lacking in credibility.
However, AFAIK, rape or even murder aren't federal crimes, unless the crime crossed state/tribal boundaries.
That was at issue in the case; the plaintiff was convicted by the state and argued that the state didn't have jurisdiction.
That's how you sentence someone for 141,078 years... (They served eight.)
https://en.wikipedia.org/wiki/List_of_longest_prison_sentenc...
Soon local politicians will require you only to do 1% of jail time so you’ll be sentenced to a 100 years in jail for a misdemeanor. This already exists in the California bail system where you pay 1% of astronomically high bails (eg $60,000 bail for 1st time misdemeanor, like if they change a court date and fail to inform you).
According to Wikipedia[2], there are several countries where this is the case:
> In Europe, there are many countries where the law expressly provides for life sentences without the possibility of parole. These countries are England and Wales (within the United Kingdom), the Netherlands, Moldova, Bulgaria, Italy, Hungary, Austria, Malta, Cyprus, Albania, Ukraine and the Republic of Ireland.
This seems much clearer to me than a 200-year sentence which needs to undergo a calculation to get the actual sentence length.
As I understand it, the way trails are done are also a bit different: rather than "two counts of X", people are judged based on "did X two times". In other words, you don't get a separate conviction for both Xs. So if someone killed three people, they're judged based on killing three people, rather than based on every individual killing. In those cases someone can receive a life sentence, rather than "3x30=90 years" or some such.
[1]: Details in Dutch: https://nl.wikipedia.org/wiki/Levenslange_gevangenisstraf#Ne...
[2]: https://en.wikipedia.org/wiki/Life_imprisonment
1. At 75 years of age, he will not live to be 175
2. The law dictates that the punishment per murder must be 50 years
3. He's been convicted of two murders, and must have both charges applied to him unless we are not to expect punishment for one of the victims.
Ergo, he must have a term much longer than his lifespan.
There are a thousand details I just skipped over (concurrent sentances, multiple crimes commited in the same act, stacking versus non-stacking offenses, etc) but this isn't unusual and is a perfectly rational and sane outcome.
Judges are elected officials, so sometimes they like to make a nice big show of giving out a 1000 year sentence to appease the masses, when "life in prison without parole" would have done the same job.
I dunno if I buy the "dehumanizing" argument, but I certainly think it's unnecessarily confusing.
- Sentencing to life without parole is considered inhumane - Criminal sentences should be proportional to the crime - Sentences are supermodular
Let's say there is a minimum sentence of two months for some insignificant crimes, start increasing the length for more serious ones. Most serious crimes usually involve several different crimes that are committed while committing the "main" component of the crime. So it starts adding up, and it starts adding up fast due to the supermodularity.
So even though the end result is seemingly absurd, trying to make it non-absurd would violate some of the most agreed-upon principles and here we are.
programs that take cases for free, typically while using them as training material.
If the SC decides the matter is not worthy, that doesn't mean that no decision is reached - it just means that the decision of the lower court is binding.
Only if the SC would have ruled differently from the lower court, of which there is no guarantee for any particular case.
The world you allow to happen us the world you get. The blame falls on you this time. You get what you deserve if you let it.
In democracy there is no "they".
"In democracy you have to be a player" – Hunter S. Thompson, source: https://www.youtube.com/watch?v=NHeSC_Ws5Ic
That's very peculiar specially American internet thing to say. In 1787 the terminology was still unsettled but it's not so today. In both political science and in the common use outside the United States democracy and republic are not excluding each other.
United States is democracy (the source of power) and republic (the structure of the democracy as opposite of monarchy) and federation (structure of the government).
Most modern representative democracies are republics. The term republic can be used to any form of government in which the head of state is not a hereditary monarch. For example many communist states are Republics.
US is also first or one of the first liberal republics.
It may be in common language, but it does make a difference in this specific situation because you are essentially suing the people who have been placed into power and those people could use their power to suppress your objections. Sometimes the judges can be a part of the complaint too, and they aren't even elected but rather appointed.
The US supreme court is a special kind of circus.
For the life of me, I can't remember any of the names of the justices on the Canadian supreme court. Its extremely uneventful, and even if there have been controversies, they were so minor or rare that I can't remember them.
The US on the other hand... The partisanship is so blatant and just accepted.
And not only that, the controversy.
I am still astounded that Kavanugh was approved after he started ranting openly about clinton conspiracy theories, awkwardly asking people if they like beer, and lying about common terms like "devil's triangle".
Given the primacy of our Constitution and the Supreme Court's role in interpreting whether a law is consistent with our our Constitution, choosing justices is a rather existential question.
And that's the crucial difference: if a Supreme Court judge in Canada starts misbehaving I guess Prime Minister can dismiss them just as easily. In the US judges are appointed for life, so if the wrong person gets appointed that choice will haunt us for a few decades.
The result of this is basically higher quality legislation: no loopholes to gain this Senator's support, no watering down or poison pills; but also, no extremist bills with clauses to trade away to buy support. The gov't passes the legislation it wants to, in the form it wants to, for good or ill. As a result, I believe, matters reaching the Supreme Court of Canada really are more narrow legal issues, not another avenue of attack on legislation. There can be significant rulings with broad implications, but overall, Canada's Supreme Court isn't a battleground because legislation isn't a mess offering a variety of vectors of attack. It's more internally coherent.
Supreme Court decisions may be explained by (1) partisan views; (2) differences in judicial philosophy; and even (3) pragmatic views (e.g. 'what can the country handle right now?').
As to learning what specifically motivates the justices, this is a lengthy topic. There is a lot to chew on.
Actors outside the Supreme Court regularly try to influence it in many ways. Some want it to be more partisan, for example. Some want to make the court more insulated from elections of the president and senators. Some want to modify the structure of the Court itself.
So does this effectively create two different rules of law over the same land...?
Like how does this work?
Probably they'll work out a compromise like: tribal government pays Oklahoma fees to have them run infrastructure as they have been, and the State forwards tax money to the tribal governments. That seems like the most logical short term solution, essentially status quo.
But the main change will be that tribal lands may now have more power to change local laws (such as ignoring laws against selling alcohol on sundays, etc).
https://medium.com/@WillandCoch/the-tribal-court-system-what...
Seems like a poor example to reach for.
The issue in this case was with a state government, specifically Oklahoma. This ruling will limit Oklahoma's ability to prosecute crime when (1) it occurs on the reservation and (2) involves members of the tribe. Congress would have to act to change this, or some agreement could be reached with the tribe.
As with so many controversial court rulings like the ACA mandate case, our courts keep getting put into the decision because of the massive failure that congress is. Congress should either fulfill the promise or not, or whatever. instead the judicial bodies end up making legal judgements with big ramifcations that largely should be left to the legislative body.
That isn't an invitation for the executive branch (or judiciary) to overreach.
In theory congress could go years without passing a single law, and that would be fine. It would signal that the current laws are sufficient.
(As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)
... and therefore the promise is still in force and should be upheld.
Congress has to do its job. Or not. Whichever it chooses. But it can't rely on the courts to do its job. The courts are right to let everything sit exactly where it is, and drop the entire matter back in the lap of congress.
If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens.
0: https://en.wikipedia.org/wiki/Major_Crimes_Act
I would assume (haven’t read the whole opinion yet) that nothing about this ruling now prohibits Congress from exercising their authority to take any further action.
"Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong [the Department of Homeland Security's (DHS)] initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government."
.
This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.
Things like DACA _need_ to be written in stone to avoid forcing the supreme court to become the effective legislator instead of having congress pass a law that enacts it as an actual program.
In this case, that's exactly what the majority concluded. In layman's terms, this is a decision that says, "We aren't doing a thing. Congress made a promise. If you want to rescind it, go talk to congress, not us."
When exactly did that happen?
If respondents want to undo that promise, they need to take the matter up with congress. That's what the court is saying. You can't short circuit the constitutional order. The court is right to drop this right back in the lap of congress.
It didn't rule that the current administration can't undo the program, it ruled that the administration has to properly justify that decision, and not doing so is unlawful.
At no point did it rule on DACA itself, or prevent the administration from providing actual, motivated and legal reasoning for rescinding the program.
Also
> This was his dissent on DACA.
Which corresponds to the majority ruling on this case, yet I can't help but notice Gorsuch joined the liberal justices in the majority, not Thomas.
That's incredibly problematic. According to the recent ruling therefore, a President has the power to issue and EO which prevents the enforcement of certain laws.
> According to the recent ruling therefore, a President has the power to issue and EO which prevents the enforcement of certain laws
is flatly untrue.
I want to be wrong, but I don't see how this isn't the precedent being set.
The court rules that the current administration can't undo it simply by waking up one morning and say "I wish that it be done;" it actually has to go through a process to explain why it is taking the decision it is, which is the same process it had to do to enact the program in the first place.
https://thehill.com/homenews/administration/506018-trump-exp...
It's bizarre to have someone quote a judge's dissenting opinion but not read the main gist of the actual verdict.
This is an inaccurate summary of the decision. The fact that you gave it, after giving an accurate summary of the dissent is very telling. It indicates that only a fool would trust you on political matters as you are a willful liar who does not respect your audience.
I eagerly await your correction and apology. Just kidding, I am fully aware that you have no respect for truth, and that you have no central morality.
This could mean a lot of things. Do you mean no change to the law is necessary? SCOTUS is upholding that principle. It is saying that the law as written stands.
The Judiciary is not overreaching here. They are doing exactly what their job says - they're interpreting existing laws, not writing new laws.
The justices' point is that congress, in its inaction, has not enabled the reduction in Creek reservations that has been perpetrated through large-scale disenfranchisement all all levels of governance, actions which are in direct conflict with the reservation treaty signed in perpetuity.
For these actions to be legal, Congress must have authorized them. This has not happened and therefore, as the justices rule, these actions are unconstitutional.
My disagreement is with people who excuse executive overreach by saying, "congress refused to act." Put another way, they're saying, "I had to work around the law to get what I wanted."
Normally this wouldn't be so bad, Congress is bad at making small evidence based changes on a reasonable timeline so instead they setup the rules for making the rules and the goals and instantiate or grant that authority to a division of the executive. Unfortunately it seems the courts have become very enthralled to varying degrees to the unitary executive theory which makes corralling that power more difficult.
This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.
To say otherwise is akin to saying that, because you and your husband can’t agree on where to eat for dinner, you must not be hungry.
Both parties might believe that a law needs to be changed, but changed in opposite directions: one might want it repealed, the other strengthened.
That is actually literally what it means. The way the Union is set up, there is a certain amount of consensus necessary to pass legislation over 50 States across 300+ million people.
If there is a deadlock, then it's the system telling you that the consensus isn't met. In a Federal system, this means that the next best place to (try to) pass the law is at the State level, where you may have less of a deadlock.
It also ignores the fundamental brokenness of the system through a sort of circular logic: things didn’t change since they didn’t need to be changed.
> If congress doesn't change something, then that means they have determined no change is necessary.
Is not accurately reworded as:
>this lack of specific consensus on action is actually a form of broad consensus on inaction
It either has to be something populist - everyone wants it so I won't get voted out of office - or it needs to be worth spending a ton of political power. When Congress is overwhelmingly in favor of a law, they can prevent a presidential veto. But that degree of unanimity is rarely free. It cost people something else, so it better be worth the opportunity cost.
This is a conclusion I'm coming to more and more. It's easy to blame Presidential overreach or Supreme Court overreach, but the Congress seems to be steadily abdicating responsibility while still managing to get very little of substance accomplished.
They are supposed to be the most powerful branch of government, but instead they have deadlocked themselves into uselessness. In some ways we're probably fortunate that the other two branches have picked up the slack, as much as we (myself included) like to complain about it.
It's like the old joke about Academia: the political infighting is so intense because the stakes are so low.
https://www.amazon.com/Subtle-Art-Not-Giving-Counterintuitiv...
There is an element of bias to this, and it often reveals a political preference of the author, but it's not without some merit.
Was the founders intention to have a super-class who had political determination?
Could you expand a little on your point?
Rome had many periods and the dynamics have played out before and provided disturbingly apt precedents even with the alien trappings and values.
Two or even three is not usually not considered to be several.
Too slow, too reliant on voluntary compliance, and most importantly, too difficult to make decisions with long term time horizons.
Not sure you want an efficient, consolidated government if the wrong party is leading it.
This chart shows government spending by various levels of government: https://images.app.goo.gl/iVpyyr2Ftzo6m7PB6
In the US, about half of all spending happens at the federal level. Germany, which also has a federal system as a matter of its constitution, also has the central government spending about half of all government dollars. Canada is even more federalist. The vast majority, about 3/4 of 4/5 of government spending happens at the provincial level. Denmark also has the majority of spending at the local level. Belgium, Spain, Sweden, Chile, and Mexico are about the same as the US in pushing about half of all spending down to the local governments.
In a two-party system that gentlemanly good faith eventually breaks down and you end up with our current problem, where you need supermajority control of all branches of government to actually do anything, because if you lack even one single point of control then party-line behavior will allow everything to be ground to a halt.
Parliamentary systems are better, there is just one house in most cases, and the executive is of the same party as the legislature, so when a government forms it has consensus and can execute policy. Yes, this is less checked-and-balanced, and that's a good thing, because accomplishing policy and checks and balances are opposing goals. Too much checks and balance and nothing gets done. If everything is fine that's great, but our system has been deadlocked for 20 years now, things are not great, and nothing can be done about it.
And there are still an executive and judicial branches in a parliamentary system, it is still a federal system, just not the American federal system.
The real "checks and balances" is ultimately voting. Having snap elections allows that check to be manifested much more readily when the government begins to go off the rails of public opinion.
(the queen is actually a very interesting apparatus in the british government... apart from having some kind of maximum duration between elections, you are dependent on someone to decide when to call a snap election. Obviously you can't really rely on a government that is completely off the rails to call an election on itself, and party line voting poses obvious problems. So how do you deal with it? An oracle machine (in the crypto sense) that exists outside the system and can operate independently to decide when to call an election. Which is what the queen does, she can dissolve parliament and call an election.)
https://www.etymonline.com/word/veto
This even appears in technical projects, e.g., Linus Torvalds, who's for years been the Linux kernal's "no" man:
[I]n the end, my job is to say no. Somebody has to be able to say no to people.
https://linux.slashdot.org/story/20/07/03/2133201/linus-torv...
Smaller, simpler systems, with greater levels of trust, or greater inequalities of power, seem to avoid this. Large ones, not.
I'm sure there's some discussion of this in political theory, though I'm unaware of it. Listing out a typology of other loci of power would also be interesting.
Because I'm not really interested in abandoning my fellow citizens who lack the means or the support structures to leave where they currently are to the tender mercies of people who plainly don't give a damn about them.
Even every "red state" has plenty of people in need who can't afford to go elsewhere and shouldn't be asked to abandon their families and their lives to just not die.
(EDIT: I normally don't respond to killed comments, because feeding the trolls sucks, but: I live in Massachusetts, dude. I'm used to a state that actually works. I wish you all had them too.)
The reality is everyone cares, they just disagree sharply on how to solve issues or which issues are priorities — to which the solution of several independent approaches seems reasonable.
When people in state A see that state B is doing much better because of policy X, they can choose to enact similar. I’m not sure I understand why they need to be compelled to adopt your preferred policies.
It’s interesting that you discuss “red states” being in need — but ignore the prolific violence in “blue cities” and poor trapped there.
As they say: Cure yourself, doctor.
The root problem here is the people who insist that their political beliefs should be implemented for everyone in the country, not just for the people around them who agree with those beliefs. This idea that "we can't leave anything up to local government because there might be some local government out there who disagrees with me" is why we have so much federal gridlock.
I don't particularly care about self-inflicted wounds, but the splash damage upon the people whose lives they make worse in the offing is a damning indictment of this conception of federalism.
Shit's broken, and it's broken for the weakest among us, and it's only getting worse with the "drown it in a bathtub" corps stomping through the White House.
I respectfully submit that you might want to reconsider your priors and update them if you want to accurately reason about the present state of the USA Republic.
The Trump administration has observably almost fully embraced an MMT style social welfare program. The sovereign currency denominated deficits don't matter position has won. The only thing that's missing is the employment backstop, but the $600 a week federal unemployment bonus arguably achieves the same fiscal effects as paying for busywork.
>Even every "red state" has plenty of people in need who can't afford to go elsewhere and shouldn't be asked to abandon their families and their lives to just not die.
>(EDIT: I normally don't respond to killed comments, because feeding the trolls sucks, but: I live in Massachusetts, dude. I'm used to a state that actually works. I wish you all had them too.)
You could write an analogous comment from a perspective of "people in the blue states need saving too".
Are you going to be singing that same pro-federal tune if issues don't go your way at the federal level?
I live in Massachusetts too. While the burning dollars of taxpayers does keep us warm there is no shortage of states in the nation that would revolt if it had government that "works" the way our government "works". People in other states are not so willfully subservient to government in the name of the common good as we are. We step in line for things that would provoke revolt in states with stronger traditions of individualism and distrust for government.
We have a limited federal government for a reason. Massholes like us have no business telling people thousands of miles away with different cultural values and different economic circumstances how to live their lives. The hell do you or I know about what's best Wyoming? Exactly.
I'd be inclined to agree with you, expect I feel this is what got us Obamacare instead of a better system - and _even then_, there was a multitude of red states that refused to accept the Medicaid expansion, to the harm of precisely the people you speak of. Pushing societal improvements on states that don't want them feels like buying a sandwich for a homeless person and having them throw it on the ground, and I no longer feel its worth the effort.
I posit that there will always be this conflict until cities have a blue federation superimposed on a red countryside. But the constitution isn't set up that way. Maybe next time.
That's what many Americans wanted, and voted for. A government that governs least governs best, after all.
I'm not smart enough to know if there is a better solution for America.
American politics has become less about policy and more about ideology and party loyalty over time, and that ideology has become more entrenched and unwilling to compromise with opponents.
There are deep divides between the branches of the electorate that have brought the representatives to office, as the United States faces a number of divisive issues. Those divides, and a preference for combat over compromise, leave us deadlocked. The center is there for the first party that chooses to leave its entrenchement.
When Congress reaches approximate agreement on an issue, particularly an emerging one, it can move fast. See the passage of the PATRIOT Act or the recent move to spend more than $1,000,000,000,000 on COVID-19 economic relief.
The 115th (2017-2018)[1] Congress had both a Republican House and Senate and it got extremely little done.
Our Congress is completely ineffective.
[1]:Fixed.
You might not agree with the principle, but given they haven't done much shrinking you cannot call it their principle.
Second, the military is one of the few aspects of government that’s clearly supposed to be done at a federal level. Why do you think there is anything inconsistent about conservatives not cutting back government uniformly?
There are 2 things that are not being taken into account.
First, historic trends are not reversed by relatively recent changes in allocation to the US military.
Second relatively recent changes in military utility of manpower vs aircraft vs cruise missile has made certain kinds of spending obsolete. A modern, effective military does not require the same logistics anymore, so of course spending has gone down.
There is nothing inconsistent about conservatives (Republicans) expanding military spending, as they always have and will continue to do so within the bounds of recommendations from the industrial military complex.
According to the 18th-century conception, the army indeed becomes a federal concern in wartime, but on an everyday peacetime basis, the training of soldiers was supposed to be done within militias regulated by the states.
As a portion of the economy, just our public spending on healthcare is higher than the OECD average public spending: https://www.oecd.org/media/oecdorg/satellitesites/newsroom/4...
Instead, it is evidence that there is bipartisan support for educational spending, but with uneven beneficiaries.
This is a different issue and the solutions to the first problem are not the solutions to the second.
Last, this isn't really a partisan federal issue. Most school spending is determined the state or local level and the same inequality is present in predominantly red and blue states.
That does not correspond with the rhetoric that I've seen. Republicans are adamantly opposed to increasing spending for public education, and have systematically cut support for higher education spending in state budgets. Instead, I regularly see the meme that there's tons of fat in the education system; that we spend just as much as everyone else, but have worse outcomes. The fault is in the schools for not spending what they have wisely enough.
And I think that the funding story is flatly untrue. Because the dominant source of public education funding is from local taxes, there are vast differences in the per-student level of funding across the country.
This is patently false. Local governments provide 45% of K-12 educational spending. State governments spend 47% and the federal government spends 8%: https://www.urban.org/sites/default/files/styles/optimized_d.... State and federal funding go overwhelmingly to erasing the disparities in local funding.
Look at the funding numbers in your own state. Here is mine: https://i2.wp.com/conduitstreet.mdcounties.org/wp-content/up.... The funding differences are based on cost of living, not local income. My solidly middle/upper middle class county has spending near the bottom because it’s pretty rural. Baltimore which is very poor has among the highest. Montgomery and Prince George’s, which are opposite sides of the income spectrum, get almost the same amount of funding. You can also see in that chart how differences in local funding are more than compensated for by differences in state funding.
And it isn't enough. Not even close.
Boulder Valley: 13.8k/student. Pueblo: 10.5k/ea. Fort Morgan: 9.5k/student. Those are sufficiently widely varying that looking at "average spending" paints an inaccurate picture.
Durham public schools: 10.5k/ea. Chapel-Hill/Carrboro: 15k/ea.
https://ballotpedia.org/Analysis_of_spending_in_America%27s_...
Range of total spending per student spreads by over a factor of 4x.
Second, I’m not sure what your Colorado example is supposed to prove. Boulder is a much more expensive city than Pueblo. Land for schools is cheaper, salaries are lower, etc. Those costs seem roughly comparable accounting for local costs.
Third, comparing spending across states is deeply misleading. The cost of schooling in Idaho (which makes up several of the lowest spending school districts in your link) bears little relation to the cost of schooling in New York (which makes up several of the highest spending school districts in your link). The irony of your example is that Idaho spends about 1/3 of what New York spends per student, and Idaho students outperform New York students: https://www.sde.idaho.gov/assessment/naep/files/general/naep...
Fourth, even the low spending school districts in your examples spend more than European countries: https://www.statista.com/statistics/381745/education-expendi.... School spending in London is about $7,402 per student. That’s substantially less than Pueblo or Durham, and only a bit more than the state average for Idaho ($7,100). I guarantee you that money goes a hell of a lot further in Durham or Boise than London!
> Third, comparing spending across states is deeply misleading.
This is why you cannot use averages to talk about school funding relative to the rest of the OECD. That's my point. You asked for statistics in my state. I gave them, in my most recent two states of residence.
I wonder if it has to do with the level of services expected and provided between locations, states, and counties.
For example, I know that special needs students, which can be notoriously expensive to educate.
Spending levels are much higher than parent reported. [1] for one school chosen at random shows that their budget was almost 8000 GBP/pupil - over 30% higher than cited. Furthermore, 82% was staffing. A mere 3% is allocated to facilities.
In my local school district[2], salaries for all staff add up to a little less than 60% of the budget. Facilities (21.6%) and debt service (7.6%) are a far greater fraction of our costs.
In short, the "education is cheaper in London" story is a lie. Many of their costs are payed for by a different color of money entirely, and simply doesn't show up on the education budget.
[1] https://schools-financial-benchmarking.service.gov.uk/school...
[2] https://www.adams12.org/financial-services/documents/fiscal-...
Moreover, many countries exempt teachers from the national pension scheme, just like the US. The UK, which I used as an example above, has a teacher pension system
French income tax maxes out at 45% on income above €157,807, while US federal income tax maxes out at 37% above $518,401
That said, what do you think drives the disparity in outcomes between different US districts and schools, if the funding roughly tracks with cost of living? Similarly, why are schools in European countries so much more efficient in terms of educational costs?
One thought on the first question that comes to my mind is that students who are impoverished or have english as a second language will not have comparable outcomes, even if their school districts have comparable funding.
I wonder if one aspect of the second question is the handling of special education for disabled students. Do European countries educate these students in a different manner from the US. Is the funding taken into account when we look at per student costs?
This is what I said as well. There is also vast difference in per-student spending within blue states and blue counties. This is evidence that the problem crosses party lines.
I'd see it rather as evidence that most educational spending happens at the state and local level, not the federal level.
https://www.usgovernmentspending.com/education_spending
Obviously high-cost states spend more than low-cost states. But their education spending is consistent with the size of their economies. Mississippi has a GSP per capita of $35,000 and spends $8,700 per student. Italy, Spain, and New Zealand have similar GDP per capita and also spend a similar amount per student.
Its really terrifying to see people confidently and passionately argue about politics while pulling their "facts" from an alternate universe.
This awkwardly also highlights ignored externalities and implied awkward questions in ways essentially nobody is comfortable is with the implications of especially regarding free choice and perverse incentives where the "best" option still has messed up implications.
The highest paid government employees in most states are football coaches for the state schools? Why? I thought schools job were to educate not cause brain injuries in their students? Why pay millions of tax payer dollars earmarked for education for someone to coach a game that injures the mental capacity of the students. Why not hire more professors with that money? why not pay teachers more or fix facilities buy material and equipment make teachers not have to spend their own money on basic supplies?
I used to feel this way too, but my understanding is that investing in sports programs tends to _bring in_ more money for universities, on net. I don't think it's accurate to consider it as trading off against academic investment.
At any rate, this is a bit tangential: American universities are the best in the world, so the conversation is more about high school and lower, where our educational outcomes lag by some metrics.
One of the best places in America to get education happens to be free: the public school system of Lexington [1]. But you'd be hard-pressed to get a house there for less than a million. Secondly, every other student in Lexington happens to have private instructors on the side. It's funny, if you randomly walk into a Starbucks in Lexington, chances are very highly you'll see an elder person with a young person training for standardized exams.
[1]: https://www.nytimes.com/interactive/2016/04/29/upshot/money-...
Regardless, you could also argue that -- similar to healthcare -- dollars in is not a great metric anyway. Are we getting the best outcomes for that money? We certainly aren't for healthcare, and my (admittedly incomplete) reading on this topic is that our K-12 education system is nothing to be particularly proud of.
They just want to spend the money that doesn't exist on different things.
Humility is a virtue.
I'm well aware of who he is. What he wants doesn't actually get done, no matter how many pledges people sign. It's a fantasy.
I could write a piece of code that adds two numbers but takes two days and all available memory to compute the result.
A lot of laws are on all levels of government from both sides of the isle are well intentioned but the costs surrounding the laws are prohibitive.
That doesn’t imply we need less laws, that doesn’t imply we don’t have enough laws, it means we need to take a hard look at where the bottlenecks are and streamline the process and to achieve the desired result.
This is separation of powers at work and is a good thing.
Edit: the comment above was edited to change the congress and dates in question
https://en.wikipedia.org/wiki/114th_United_States_Congress
This time was an extraordinary humiliation for Paul Ryan in particular because it should have been an opportunity to get lots of ideologically-motivated things done really quickly, and yet they failed to achieve even incremental progress on Trump's top legislative priorities, like repealing the ACA and securing funding for the wall.
Especially since law-makers have a strong incentive to further their own careers by introducing changes. This system forces law-makers to work harder to get change passed, it often must be a change that benefits more than just a simple majority.
It doesn't even require a majority: we've so predisposed the system to inaction that a small number of people can block it. To pass legislation you need the consent of the House and the President and a supermajority of the Senate. Any of those can stop a law in its tracks.
It's easy to say that we should favor not changing things, and there are definitely ways that we should force people to seek consensus. But when the current setup works against you, you can suffer for decades without getting relief, and it's not a good look to just shrug our shoulders and say, "Well, it's working for me".
This is the overall design.
So out of simple self interest it behooves us not to just say "the status quo should be hard to change". When we see an injustice, we should fight to change it, even when it's not to our own immediate advantage.
[1] https://en.wikipedia.org/wiki/Four_boxes_of_liberty
It is an amazing read, but the things that stand out to me are these.
1. Have diffuse/decentralized power centers to make it harder for special interest groups to gain power and control things. The last two centuries have had a tendency to move power from states to federal government; and from Congress to the President. So the balance of power has centralized.
2. Avoid a direct democracy because they tend to get subjected to demagogues. The direct election of senators was a major turning point in helping centralize power; since states became more and more irrelevant.
I am always impressed by how much Madison understood the nuances of political power and tyranny.
[1] https://billofrightsinstitute.org/founding-documents/primary...
Generally though, I agree with you that we should all strive to vote for the greater good. We should fight against injustices even if they do not directly affect us.
I think that many of the issues come down to differing views of what more just: IE employment opportunities for a citizen vs. an immigrant, rights of a criminal vs. a victim, autonomy over one's body vs. a potential life. Those don't have easy answers.
Yes, Congress is ineffective -- I think that's almost become an axiom at this point.
But it is often ineffective because of the rules it has adopted itself. The filibuster was removed for federal justices, and guess what? I think it's nearly 200 justices confirmed in the last three years, and while I don't remember the exact number during previous congresses I believe it's significantly higher.
As already noted, the filibuster is the root of a lot of this, but should the filibuster go away? McConnell famously told Reid he was going to pay for removing it, and he's made good on that promise, essentially transforming the entire federal judiciary with the power he was given. I view the filibuster as a check on the power of a tiny fractional majority -- should one party totally control everything that happens with a single vote majority? That essentially ignores the concerns of the rest. The filibuster at least forces some consensus building.
Better would be to have more than two parties. But how we could ever get there now I have no idea, the two parties in power have no intent of giving it up, and most people quite frankly are too stupid to even be bothered to vote, and those that do might be even more stupid in some ways. "Congress" is bad, "my congressperson" is the greatest ever because they get me money, and that seems to be the guiding principle for people voting these days. Maybe it always has been.
Approval Voting simply allows the voter to vote for or against each candidate independently. (The instruction is to "vote for all candidates you approve of" -- hence the name.) "One person, one vote" becomes "one person, one candidate, one vote".
Instant-Runoff Voting (aka Ranked-Choice Voting, though there are other ranked-choice systems) is getting more buzz these days than Approval Voting, but AV is superior: much simpler to implement, easier to understand, and much less likely to return an anomalous result.
For more info: https://www.electionscience.org/
You think so? It lasted all of fourteen years and did very little to stop the flow of alcohol throughout the country. And I believe it's the only amendment to have been repealed.
If it were a legislative action, rather than an amendment, I suspect it would have been more effective in the long term since legislation is usually more thorough and detailed than constitutional amendments.
Weather or not the law had the desired effect relative to hypothetical legislative action is an open debate but undoubtedly could be overturned with less votes.
Which it was, by the (post-Armistice, pre-18th-Amendment-ratification) “Wartime Prohibition Act”.
Perhaps the line of reasoning you're alluding to is that, at the time, state and local prohibition laws were already so common that the Prohibition Amendment shouldn't have changed the effective legality of alcohol consumption for most Americans. But to maintain the status quo in perpetuity, locking in Temperance Movement reforms without defectors slowly eating them away, a national law was desirable.
[1] I'm still looking for the citation, but IIRC the reasoning was that the court wouldn't interpret the amendment to reach private, non-commercial activity unless it was explicit on that point; it wasn't just a cop-out textualist dance with the word "manufacture".
> But to maintain the status quo in perpetuity, locking in Temperance Movement reforms without defectors slowly eating them away, a national law was desirable.
But overall yes — this what what I was referring to. Even if I wasn’t clear on the state vs federal level, the overall argument that I’ve seen is that the proponents of prohibition wanted to increase the difficulty of rolling back prohibition. And if alcohol was banned through legislation, it would just take a single election (state or federal, depending on the law) to change things back.
The problem with the 115th Congress is that Republicans have done a good job getting their base to believe that various policies are bad for the country, but when push comes to shove even they recognize that: 1 - they have no viable alternative, and 2 - that said policies are better than nothing.
You should not conflate one party's inability to govern with Congress being dysfunctional overall. When the Dems get control of all branches of government again, I fully expect to see the logjam clear up for at least a few years.
As you note, when congress sees an urgent problem worth solving, they move quickly.
When I read, "congress is abdicating its responsibility", it seems to me people are just upset a law they like wasn't passed.
In other words, people want a dictator they agree with, rather than taking the time and effort to change the minds of their fellow citizens on any given issue.
Besides, inaction is often the best path to take, particularly when there isn't a clear winning idea.
eg in federal legislation: the House (majority); the Senate, representing increasingly tiny numbers of Americans (supermajority, often: cloture); the president, and the supreme court.
Ezra Klein wrote a book about it. https://simonandschusterpublishing.com/why-were-polarized/
So I'm still putting the blame right on them.
Personally I don’t think the decline in Congressional power has a single cause. But the decline of political party power is surely one.
Concretely, I think we should prioritize campaign finance reform and lobbying. It's only a start, but a potentially important one.
Unfortunately, that just isn't so. The evidence of the last three decades has been that every time the Democrats compromised a little, the Republicans just moved further to the right and re-entrenched themselves.
https://www.lgbtqnation.com/2020/07/massachusetts-city-begin...
For animals, there's the Harkness Test.
It doesn't literally have to be the exact same issue over and over.
Compromise implies both sides give and take, and in the case of gun rights, democrats have only taken.
The American political system doesn't support a la carte ordering, it only has prix fixe options. If your priority is some main course, you might not be able to get the side you want with it.
This is actually a very good point. I wonder what the response would be to a Democrat-authored bill that (say) demanded universal background checks and proof of a firearms safety course completion and mandatory insurance like a driver's license that ALSO banned any restrictions on large magazine size and removed any restrictions on fully-automatic weapons, or something similar.
Imagine carrying free speech insurance.
Most accept drivers licenses however the constitution grants the absolute right to travel in the same way it grants the right to speech. This has actually been used by the ACLU in an attempt to challenge no-fly lists, and hopefully drivers licenses will also be challenged.
America has by far the most relaxed gun laws in the western world. Most other countries simply ban ownership of most guns outright.
The current situation IS the compromise. And it's pretty stupid I agree. But, there are no states that ban guns and plenty of them want to.
There is no hyper political, highly targeted, industry funded political action group just like the NRA on the side of banning guns.
After every mass shooting in this country democrats have to fight tooth and nail to get even a tiny consideration of regulation in response to human tragedy. And even that usually fails. In what world is that rational? In what world is that not compromise from the left?
At every step, law-abiding gun owners have given up rights and gotten nothing in return.
The great irony, to me, is that almost all of the "successful" gun/weapon control campaigns have been rooted in nearly blatant racism. Yet repealing those laws born of racism isn't something the left is willing to entertain.
Supreme court opinion on gun ownership was that it could be far more restricted (and it was in many cases!) until Heller.
Miller was dead by the time his case was decided, nobody argued his side, and the courts argument was was dishonest at best.
No, it wasn't. The current legal interpretation that most gun-rights advocates swear by has existed for a relatively short time, after the lobbying efforts of groups like the NRA.
According to this article[0], the early US adopted numerous restrictions on guns based on preexisting English common law, and during the revolutionary war even forbid anyone from owning a firearm without first swearing a loyalty oath to the government[1].
And of course 200 years ago, slaves weren't allowed to own guns for obvious reasons[2]. Of course, slaves weren't considered persons at the time either.
It doesn't appear that there was ever actually a time in the US when gun ownership was completely unrestricted.
[0]https://theconversation.com/five-types-of-gun-laws-the-found...
[1]https://founders.archives.gov/documents/Adams/01-03-02-0016-...
[2]https://www.sedgwickcounty.org/media/29093/the-racist-origin...
Which is not what I was talking about. I was talking about gun types not regulations to get a gun, store a gun, registration or anything like that.
>And of course 200 years ago, slaves weren't allowed to own guns for obvious reasons[2]. Of course, slaves weren't considered persons at the time either.
I wasn't clear. I meant any free adult not anybody.
Some slaves were slave drivers. White slave drivers had access to guns. It is not clear if slave drivers who were slaves had guns but it is possible. This of course would be an exception if it did happen.
The average slave of course would not own a gun.
>It doesn't appear that there was ever actually a time in the US when gun ownership was completely unrestricted.
Again, that is not what I was arguing. There doesn't appear to be any restriction on the type of gun you could own. There were other restrictions like not shooting cannons inside of city limits for example. People were allowed to own cannons though.
You may be unaware because this isn't an important issue to you but just off the top of my head the Brady Campaign, Everytown for Gun Safety and the Coalition to Stop Gun Violence all have major financial backing and support firearm bans in one form or another.
There are plenty of states that have attempted to but the courts have stated the laws are unconstitutional.
Sure, we can compromise on the background check requirements such that certain types of sales don't require background checks... well, ok, but then that just means that the people who would fail a background check will buy privately or from a gun show, and their access isn't really diminished, so the so-called "compromise" was little better than not passing a law at all.
It still boggles my mind that if I want to drive a car, I have to be tested and licensed, and carry insurance, but if I want to buy a device specifically designed to kill, I can just walk into a store, and after any weak legally-mandated waiting period, walk out with a gun I don't even know how to use, let alone use safely.
And all this because it has to do with an amendment to the constitution that was never intended to mean what people have since "decided" it means. The current legal interpretation of 2A only exists because of lobbying groups like the NRA.
This is a gross misunderstanding of the law. If you run a firearms business, you must have an FFL. If you have an FFL your must perform background checks for transfers regardless of where they occur.
Private party transfers are only from one non-dealer to another and must be infrequent / not a source of income for you. Purchasing a gun on behalf of another (such as to avoid checks) is called a straw purchase and is illegal regardless.
On your automotive analogy - anyone can own a car. I can gift one to my 5 year old and so long as it stays home, he's 100% legal. Driving it is a privilege that's regulated. Likewise, carrying a gun is often regulated as you wish - and beyond reasonable levels in several states.
The "gun show loophole" is nonsense. Very few guns are transferred that way, and essentially zero "crime guns" were purchased this way. They were all either acquired via straw purchases (already highly illegal) or completely above board in a state with lax reporting requirements to the background check system. Ironically, the gun industry and gun community are, generally, huge supporters of addressing both of those issues.
Not everywhere; in some (many?) states, even cars intended to sit idle on private property must be registered (usually for a lower fee), and you can't put a 5 year old's name on the registration. Regardless, giving your 5 year old a car and saying he "owns" it is laughable.
Your analogy doesn't really make sense, either. You could give your 5 year old a gun to keep in his room, and while that's a terrible idea, it'd be difficult for you to get in trouble for it. Either way, your 5 year old isn't gonna be able to walk into a car dealership and buy a car any more than he could walk into a gun store and buy a gun.
> Likewise, carrying a gun is often regulated as you wish - and beyond reasonable levels in several states.
No state regulates guns as I wish. I won't elaborate much because I doubt we're going to find any form of agreement there. I will say that I support the repeal of 2A (not like that will ever happen), and at the very least I'd like the states to have the power to regulate firearms in whatever ways they see fit.
> This idea that we've only had gun rights since Heller is itself a modern invention.
I don't think anyone's claiming that we didn't have gun rights before 2008. But Heller (and other cases over the last 80? years or so) have narrowed the kinds of restrictions that are considered constitutional. Heller finally taking the position that 2A protects gun ownership regardless of participation in a militia was a big deal as well.
Let's take a state like Hawaii - what additional restrictions would you like to see them place on guns? It's already about impossible there.
And if you want an example of the Democrats doing something similar, maybe the immigration situation? It is also nuanced and complicated, but the appearance isn't that the Democrats are consistently working to uphold the consensus position as found in the law. There is a lot of demonising.
> According to the system, both parties have been on a trajectory toward more “extreme” positions since roughly 1970, the natural result of which is more polarization. However, the parties do not quite share equal responsibility for this: Republicans have moved about twice as much to the right as Democrats have to the left. Also, while the Democrats’ leftward shift was essentially a one-off event, the result of many moderate, Southern Democrats losing their seats in the early 1990s, the Republicans’ rightward transition has been continuous and steady.
Although to caution too-credulous interpretation, the DW-NOMINATE scores are derived from roll-call votes, so they may be biased by the issues brought up for such votes.
Citation needed.
I have seen this claim about the left at least as much as about the right. I would definitely appreciate someone who could bring facts to the discussion.
And a one sided list of things that party X did is just emotion.
(Also, a good rule in honest debate is to never argue unless you have at least two advantages to the opposing position. Such that I hate Windows, but I wish Linux had their GUI... This helps bridge the "us" and "them", and gets to a much more accurate result)
The republicans have led for decades. They are responsible for each vast increase, especially during Obama. Always pushing it further and further toward nothing getting done in the name of never compromising.
It seems that the vast majority of comparisons of left/right in the US are comparing either how many people identify with one side, or how each side views the other. This particular chart however was part of an article that tried to enumerate the actual political stances of major parties (in the US, and I think it included UK ones as a reference point, but not sure about that - may have been a separate part in the same article) and show how they changed over time.
The structure of this chart was a vertical line graph, where "now" was at the top and the past was at the bottom. I think it went back to around 2000, maybe a little earlier. Being vertical it was rather distinctive and I'm hoping this jogs someone's memory so it can be found again.
On it, over the past 10 years or so, the Republican party has only shifted slightly to the right, while the Democratic party veered way way way to the left.
Edit: Found it: https://www.nytimes.com/interactive/2019/06/26/opinion/sunda...
The specific chart I'm remembering is halfway down the page, and right below it the methodology is described.
Objectively, Republicans are not compromising, they are often explicit that they are waging a scorched earth zero compromise negotiating style. The heritage foundation wrote the template for the ACA in the 70s as an alternative to Medicare expansion. It was then Bob Dole’s plan when he ran against Bill Clinton, and was Dole’s alternative to Clinton’s health plan. Then Romney passed it in Massachusetts. But when Obama consciously tries to compromise and meet in the middle instead of participating they say it’s communism. They spent a decade to repeal a plan they invented.
Similar with global warming. Cap and trade was a republican idea. Where have they compromised? Instead they are demonizing all of science to shift the conversation to absurdity.
How about the 2008 stimulus. Obama has to fight tooth an nail for 800 billion even though economists say the output gap is $1.5 Trillion and the stimulus needs to be bigger. But Obama agrees thinking when it’s clear more is needed more will be available. He underestimated how much Mitch meant it when he said “the single objective is to make Obama a one term president” and was willing to let the economy struggle if needed. Then Trump gets $3 trillion with Democrats compromising all over the place.
Not voting for someone who can win is "wasting your vote" so people won't do that. Which, essentially, locks us into two parties. When the two parties know they are safe from a third, they're naturally going to be driven by the extremes and not the middle ground, because the national, fast-paced media lives off controversy between the extremes, which just ratchets it up farther.
IMO, the fact that we had political parties rise and fall (via third parties) in the past was more a historical artifact of not having a national, near-instant media to make sure things were polarized the same way nationally, nor could they let you know that a third party vote was a waste. In a sense it was more like local politics today, in that things weren't uniformly hyper-partisan, and a third party could make headway regionally and become a real contender before the rest of the country knew they were a wasted vote.
Approval voting is a much simpler system that gives better results.
https://www.electionscience.org/library/the-spoiler-effect/
1. What sort of compromises with the modern Republican party do you expect the Democrats to have to make, that they haven't already been making?
2. And what will their reward for making them be? Another supreme court appointment unfilled until the president is a Republican? Another crappy compromise healthcare bill that maintains the status quo? Another decade or two of inaction on climate change?
No, it's not; political opinion in the US is closer to a bimodal than a normal distribution; the center of the current Overton Window is a place where you lose your base while not meaningfully appealing to people inclined to vote for your opponent, plus even if you succeed momentarily when (probably not “because”) you do that (e.g., Bill Clinton), the result is shifting the near pole of the Overton Window toward your opponents’ position which almost invariably results in a similar movement of the far pole maintaining the width of the Window.
A lot of the dynamics of this is tied to the structure of our electoral system; more effectively representative, multiparty systems have different dynamics.
They were always intended to be both. Since there had to be such a powerful entity within the government (the power exists, so it has to be put somewhere), the best course of action to prevent any whim of politics doing irreparable damage is to pit congress against itself so that any actions it takes are generally too slow for transient whims to affect it.
Better that the powerful are inefficient.
So get rid of congressional districts and instead fill the House according to proportional representation.
The US needs more than two parties.
"Ambition must be made to counteract ambition" he tells us in Federalist 10. The idea of a legislator who would derive self-worth not from actually doing things (good or bad) but rather by approbation from their faction solely for making the other side mad was not something they thought possible.
Edit: Since most replies are talking about the empire, I just want to reiterate that my comment was regarding the end of the Republic, which imo is a more analogous situation to modern USA. (Not to say it's identical, of course!)
"The violent death of Caligula [the previous emperor] afforded the Romans a fresh opportunity to have asserted the liberty of their country; but the conspirators had concerted no plan, by which they should proceed upon the assassination of that tyrant; and the indecision of the senate, in a debate of two days, on so sudden an emergency, gave time to the caprice of the soldiers to interpose in the settlement of the government.
By an accident the most fortuitous, a man devoid of all pretensions to personal merit, so weak in understanding as to be the common sport of the emperor’s household, and an object of contempt even to his own kindred; this man, in the hour of military insolence, was nominated by the soldiers as successor to the Roman throne."
In relation to the parent point, Octavian also went through great lengths to _appear_ to be acting at the will of the Senate. He was "first citizen" and all rights and protections granted to him here "granted" by the Senate. Whether this was under duress or just abdication for the sake of peace is debated.
There are some parallels between the current situation and the fall of the Republic, but there are for more differences. We are more at the Gracchi stage than the Caesar stage at this point. So there is hope!
https://www.washingtonpost.com/opinions/is-the-us-presidenti...
America was thought to be an exception because both parties used to be more centrist with wide overlap, but it seems they've become increasingly polarized, which makes the whole system less stable.
The US Congress has incredibly low approval ratings, as a whole. But each individual congressperson enjoys surprisingly high approval from their constituents. I guess Madison just didn't see that those two things could happen at the same time.
If Americans cannot agree on anything, therefore, congress cannot either. People blame congress, but it's the American people who are ultimately responsible.
(by design! the point was to give smaller states a say and that itself is the problem, it is a bad idea to let a minority be able to grind all action to a halt. You say "but what if they do something I don't like" and the answer is vote them out next time, elections should have consequences and winning an election should result in a government that is able to accomplish policy. Setting it up deliberately to deadlock just because they might do something you don't like is a terrible idea and needs to stop being viewed as some kind of virtue of the design of the American system. Just because the founders did it, doesn't mean that it is a good design, they had lots of bad decisions... like slavery, and setting up the government to allow slave states to have equal control to the free states.)
if you assume some kind of relative equality of states, then on the whole the senate should approximate the house, and you can easily come to the conclusion that we really don't need the senate itself at all. abolish it and go to a unicameral system.
Similarly the parliamentary system where the executive is chosen by the majority of the legislature is a much better idea - again because it results in a government that is actually able to accomplish policy.
there is very much a reason that none of the other countries whose constitutions we wrote over the years (Japan, Germany, etc) use the American system. Everyone in power realizes that the American system is terrible and doesn't produce a mandate to govern.
It's amazing that it worked for as long as it did.
The solution is not to remove the Senate/House combination that balances the will of people and the will of States, but for larger states to break up into smaller ones.
Oh we must, must we? Why's that?
It's not an assumption, but rather an assertion, based on the observed outcomes of this system in action, and the strife it has caused (literally a civil war, and gridlock in the modern era).
The assumption here is that representing states themselves is in any way a desirable goal. Just because the founders did it, does not mean that it was a good idea. Being able to observe outcomes and change your course of action when the results are not good is the mature thing to do. We do not need fetishism of the actions of people who are 200 years in the grave, the founders themselves advised against such a thing and gave mechanisms for the constitution to be changed. Unfortunately these have atrophied along with the rest of the american federal system.
States have lots of other ways to express their will: they have unitary power within their territory, they have the ability to lobby congress and the people, and they can sue if they believe their powers have been unfairly abrogated. The senate as an institution representing states directly has been dead for over a century. It is now an institution representing the people in those states already - but a very undemocratic and unfair one.
> The solution is not to remove the Senate/House combination that balances the will of people and the will of States, but for larger states to break up into smaller ones.
Which is a tacit admission that you think equality of states is a necessary and worthwhile goal to make the Senate work properly. You just disagree about how to fix the current problems with the Senate.
Sure, dividing states up to a more equal population is one way to make it work. Probably not really possible when New York City alone has the population of what, 15 or so states combined? Do you suggest fracturing the city into 15 states? That would be incredibly awful to administer.
Very simply, the Senate is just a failed design and cannot be reasonably fixed without inflicting even more cumbersome forms of government just to try and preserve it for the sake of preserving it. It needs to just be eliminated.
Not that there is any plausible means to reach any of these goals of course, Congress would not approve of states dividing themselves up since that would disadvantage Republicans. Politicians will never vote to remove their own structural advantages even when it is the democratic thing to do.
The first hundred years of the US tend to disagree with that statement
Are you talking about Congress or the country as a whole?
Not the executive, and not he judicial (it's not even well defined in the Constitution).
The elected body of representatives is supposed to be where the action is.
They've gradually been failing more and more
If Congressional lockdown was useless, it would've been fixed. Clearly, there's plenty of interests that favor a Congress/Senate that isn't able to move legislation forward.
Agreed. Congress is way too addicted to political grandstanding and partial fighting instead of making laws to clarify the situation. It seems pretty clear that with all the 5-4 divisions the Constitution is not precise enough to decide these things unambiguously.
We need more Civics classes for students.
Branches of the Federal Government being put into the decision because of a massive failure of another is exactly why we have 3 branches. It's rock-paper-scissors. Checks and balances. Which is why, for instance, people squawk so much when the executive branch imagines itself new powers it was not granted.
The normal idea behind "checks-and-balances" is that if one branch exceeds their authority, the other two branches can serve as a check on abuse of that authority. The argument being made by GP, though, is pretty much the opposite: Congress isn't overstepping their authority, they're abdicating it. It's basically like they want to be 'checked' by the Supreme Court, because they don't want to have to take a clear stand in the first place.
It's also simply the fact that politics abhors a power vacuum. If one branch of government abdicates its power, that slack has to be taken up elsewhere.
It could all spin based off of the next appointment.
But The Founders clearly thought Congress should be somewhere else than yelling from the sidelines.
Yes, both are major oversimplifications to a complicated situation, with path dependencies and subtle counterintuitive cofactors. But it's good battle cry.
We need more accountability, more transparency, more democracy.
A systems engineer strives to create functional feedback loops. Today, that means closing the gaps in our broken feedback loops. Consent of the governed, and so forth.
This ruling, as I understand it, resolves a narrow technicality—but that technicality has potentially enormous implications.
The Court has only decided that the federal [EDIT: state! sorry!] government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK—this is what the press means when it calls this territory "Indian reservations." They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
Further narrowing the ruling, my understanding is that this only applies when all persons involved in the crime (e.g., the victim) are also tribal citizens.
But, this ruling does open the door to a lot of those types of questions. It is possible we see several cases related to the sovereignty of these nations over the next few years, possibly greatly expanding the scope of the jurisdiction of the tribal governments.
It's bizarre that the headline could have read: Rape-related SC Decision Returns Land to Native American Tribe.
The big news is precisely that formal recognition of Tribal (and, notably, treaty-conferred) authority.
Without the rape case they wouldn't have had a reason to challenge the questions about the res but now that the Supreme Court has resolved the larger question it's applicable across the board.
It could have just as easily been a case about shoplifting or murder or anything else. In fact, last term there was a case similar to this that was about a murder, where the defendant was sentenced to death by the state and they argued that the state didn't have jurisdiction. Gorsuch heard the appeal in the circuit court so recused himself from the SCOTUS case and the belief it was deadlocked 4-4, so they took this case and made the ruling with a full nine Justices.
The issue at hand was state government prosecutorial jurisdication, not federal. From the article:
Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.
The only possibly-unclear thing I see is reimbursement of recently paid state taxes by tribe members, I think they can claim back some.
Did I misunderstand what the case was about? I thought the case was that the state government has no jurisdiction and only the federal government has jurisdiction.
Or maybe I'm confused because that's what the previous (4-4 deadlock) case was about and this one is actually bigger.
Depending on the reservation, you will find plenty of non-members that own property within the reservation.
It's kind of fascinating having these micro-nations that aren't quite nations within our borders, I should read more in to this subject.
Real property within reservation borders is either deeded land or trust land. Deeded land can be sold without restriction. Trust land cannot be sold without approval of the US Bureau of Indian Affairs and/or the tribe.
Natural resources in reservations are usually managed by the tribe. Including hunting and fishing. Some let non-Indians or non-members hunt/fish some don't.
Except for a few exceptions, living on Indian reservations is no different than living anywhere else. Tribe made laws/rules do not apply to non-members -- unless the State or Feds says so. These are usually hunting rules. For example, the Colville Reservation in the State of Washington restricts non-members from hunting large game (deer, black bear, etc.) even if the game is on deeded landed. They can do this because there is a state law that says the same thing.
Also, generally tribes or tribal owned businesses cannot be sued in state or federal courts unless they agree to be sued (same/similar as States and the Federal government). Thus, persons have few rights when it comes to contract disputes, personal or workplace injuries, labor issues, and so on, that involve tribes or tribal owned businesses. Something to think about if one is considering employment or otherwise doing business with a tribe or tribal owned business.
"Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies."
https://www.bia.gov/frequently-asked-questions
They retain ownership, but can actually get something for it.
If you're referring to the New Territories portion of Hong Kong, that lease was from 1898 to 1997. That lease expired almost 25 years ago.
[0] https://en.wikipedia.org/wiki/St_John%27s_Cathedral_(Hong_Ko...
https://en.m.wikipedia.org/wiki/Ground_rent
Yes it can hurt resale prospects, the longer into the lease you get. At the same time it can also lower upfront acquisition costs. Something to know when you get into it.
If you think about it, there isn't much of a difference between a 99 year lease and a 1-3% property tax.
That is literally all of the SCOTUS rulings. It's petty listening to bright minds discuss minute details. The fact that technicalities have far reaching effects is a sign that the system is broken.
If the highest court of the land doesn't sweat the details, why would lower courts or any other aspect of our legal system be reasonably expected to do so? In any reasonably complex system (legal or otherwise), it should make sense that the technicalities do matter, and that the supreme decision making body in that system should consider those carefully due to the outsized influence it holds.
It feels frustrating to those outside the law. But that’s always been true of the law, as far as I’ve read.
Also remember that our legal system is a direct inheritance of the English legal system we separated from in the 1700s. There’s actually more history to our laws than to our country. So to some extent the years of buildup contributing to confusion stem back pretty far into the past. We would have a lot of work ahead of us to reinvent the quirkiness out of the system.
That's why so many decisions come down to careful parsing of words and "technicalities." A case that reaches the Supreme Court will usually have generated intense controversy about what is the more desirable result. Thus, the focus is on reaching a decision that people can't argue with because of scrupulous adherence to rules and doctrines.
I find that an utterly hilarious thing to say in a forum with a large number of highly technical people, and another large number of people who understand complex, nontechnical systems.
Korematsu v. United States? Brown v. Board of Education? Loving v. Virginia? Obergefell v. Hodges? Roe v. Wade? Dozens of others?
I have to assume you mean this batch of rulings, otherwise I can’t comprehend this idea.
I live in the desert in CA and here most buildings built on Indian reservations pay a yearly leasing fee.
It would be such a huge power shift for the tribal nations. It's one of those things that could ripple through the system or hit some stone wall I'm unaware of. Really interested to know what will happen.
> They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
> McGirt, 71, has served more than two decades in prison after being convicted [...] of rape, lewd molestation and forcible sodomy of a 4-year-old girl. McGirt [...] did not contest his guilt in the case
I'd be interested in learning who was involved in McGirt's proceedings and why. Did they mean to actually get this guy free (which, to be fair, at his age could be a charitable act in itself), or did they just think it was as good a chance as any to get this old treaty back on the table? There is a book and a film in that story.
I agree wholeheartedly, but in practice this often doesn't happen, for a multitude of reasons. Legal representation costs money in most countries, and most lawyers don't particularly enjoy defending guilty people (obviously they do it anyway, but it's a bit like having to fix a '90s PHP website when your passion is Python 3...). Hence my curiosity about the backstory of this particular situation going on for so long (20 years and all the way to SCOTUS is a lot of work).
This is a common misconception, but the requirement is not quite that broad. The police are not obligated to read you your miranda rights immediately upon request—it's possible that they might not at any point read you your miranda rights.
What they cannot do is begin to question or interrogate you if they do not read you those rights. Any questions they ask without having read you those rights are at risk of being thrown out in court. Police will usually interrogate people after an arrest, so will often read them their miranda rights. (Edit: I also found out that any spontaneous statements you make are also fair game, if they didn't ask a question or prompt the statement)
But, it's not an obligation for every arrest. If you are arrested the police might not read you your miranda rights, and your rights probably haven't been violated if they don't question you.
If you are ever arrested, and interrogated, DO NOT TALK TO THE POLICE BEFORE YOU CONSULT YOUR LAWYER. Never, ever, talk to the police without speaking with a lawyer first. Here's an excellent video that explains the reasons why better than I can. I highly recommend this video: https://www.youtube.com/watch?v=d-7o9xYp7eE&t=4s
I was corrected about this a long time ago by a police officer who knew his stuff.
https://en.wikipedia.org/wiki/Miranda_warning
Nearly all US presidents, including George Washington, led genocidal campaigns that burned down entire towns or otherwise committed crimes against humanity in the name of expanding the colonial lands of settlers.