The plan

Here’s what might happen if progressives hold the Supreme Court for long enough.

Start with Trop v. Dulles, which illustrates the theory of the ‘living Constitution’:

The exact scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Under this theory, certain phrases in the Constitution—”cruel and unusual punishment”, “just compensation”, etc.—are to be interpreted according to the standards of the day, i.e. the standards of whoever or whichever institutions can convince enough people to agree with them that the Court can plausibly claim them to be the standards of the day.

Certain persuasive institutions have decided to start convincing their audiences that ‘hate speech’ is not free speech.

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20 responses to “The plan

  1. Pingback: The plan | Reaction Times

  2. NRK June 12, 2016 at 7:49 am

    Soon enough, you’ll have norse standards of prison life. And everyone knows, this leads to soaring crime rates. Oh, wait…

    • hipolipopilopih June 12, 2016 at 11:09 am

      “We’re all the same guys!”

      • NRK June 12, 2016 at 11:33 am

        I can only make some vague guesses as to what you’re trying to say, but judging from experience, it probably isn’t “I have solid evidence that prison reform will make things worse”. Feel free to correct me, though.

      • Max June 12, 2016 at 1:55 pm

        I can only make some vague guesses as to what you’re trying to say, but judging from experience, it probably isn’t “I have solid evidence that prison reform will make things better”. Feel free to correct me, though.

      • NRK June 12, 2016 at 2:04 pm

        Hey Max,
        it will certainly make things better for the prisoners. I mean that’s some wild conjecture, probably, maybe a majority of inmates are masochists. But you know what, maybe we as a society should force our notions of well-being upon them in that case.

    • Erik June 12, 2016 at 1:54 pm

      You mean like Sweden?

      • NRK June 12, 2016 at 2:18 pm

        No, like I said, Norway. I have no idea what swedish prisons are like, just that Sweden has life sentences and Norway doesn’t; in Norway you get a 30 years max for genocide.

      • Erik June 12, 2016 at 5:38 pm

        The adjective for Norway is “Norwegian”. “Norse” indicates vikings, which will generally get parsed as the sweden-denmark-norway cluster, sometimes also iceland and finland.

        Norway does have life sentences, they’re just handed out on an installment plan. Anders Breivik will serve 21 years, whereupon a committee will convene, ritually ask “Do we extend this guy’s sentence?”, answer “yes”, give him five more years, and make a note to convene again in five years. There is no limit to how many times this can repeat. I don’t know where you got your 30 years figure.

        Norway has similar prisons and sentencing rules to Sweden, but only the latter has a soaring crime rate, and the obvious reason is that only the latter has invited a million third worlders in.

    • hipolipopilopih June 12, 2016 at 2:55 pm

      > it will certainly make things better for the prisoners.

      There no need for you to provide more proof that utilitarianism is a mental disease… but thanks anyway.

      • NRK June 12, 2016 at 3:09 pm

        There is nothing remotely utilitarian about what I said, so what are you even on about. The notion that prisoners should be treated in ways that preserve their human dignity can be argued for from a broad range of moral perspectives, from deontology to contractualism to christian ethics.
        The notion that they should suffer in addition to the restriction of movement, on the other hand, can probably be argued for in the most consistent way from a utilitarian stance: their suffering works as a deterrent for the even greater suffering inflicted by crime. Now this is certainly not my own position, not only because utilitarianism is wrong, but also because that kind of deterrence simply doesn’t work, cf. the war on drugs.

    • nydwracu June 12, 2016 at 4:47 pm

      What does this have to do with anything?

      • NRK June 12, 2016 at 4:58 pm

        Eh, I was using your example of changing definitions of cruel and unusual punishment as an indicator that interpreting the law from a contemporary point of view (is there even another? is the demand not to do this not just another contemporary point of view, and arguably one that’s not even that helpful as it prevents the appreciation of problems as they currently present themselves?) might actually have positive effects, namely prison reform.
        The ensuing discussion has unfortunately gotten out of hand, as some people find the idea of prisons not being hellholes morally repugnant.

      • Contaminated NEET June 13, 2016 at 10:58 am

        What this has to do with anything is that NKR is a thoughtful, humane, educated person, who is much holier than you are and much higher status. Is there ever any conceivable situation where that is not relevant?

      • NRK June 13, 2016 at 12:47 pm

        I am indeed extremely thoughtful, humane and educated (well I falsely substituted ‘norse’ for ‘norwegian’, so I can’t be THAT educated, but still), and certainly holier than most people I meet on an average day, but I’m no longer holding my breath for this to grant me any increase in status.
        Also, my holiness may be the point of the meta-narrative of my combined expressions, but I’ve gone through the effort of anchoring it by pointing something out at the object level, so would you please engage with that, too? Otherwise, what you’re doing is just hollow reverse virtue-signalling (vice signalling? definitely a thing, explains 90% of chan culture).

      • Contaminated NEET June 15, 2016 at 3:42 pm

        NRK, I saw your exchange with Jim the other day about conservative” views. You started off with a complete failure of formal logic, which Jim immediately pounced on but you never acknowledged. Here, you slide right by Nyd’s main point to try to start a dreary, scolding conversation about prison reform. This is your “object level” engagement? No thanks. You don’t argue particularly well or honestly; I’d rather go get my teeth drilled.

      • NRK June 15, 2016 at 7:16 pm

        Dear NEET, my initial post over at jim’s wasn’t intended to demonstrate the falsehood of his assertions, but to denounce them as a nonsensical attempt to move te overton window to the far right. No fallacy was to be acknowledged, even if the point went completely over your (and jim’s) head.
        As for nyd’s post, he happened to illustrate his (arguably justified) fears of a change of meaning of the first amendment with the example of a change in meaning that isn’t remotely scary or objectionable, quite the contrary. The debate that followed me pointing this out was admittedly unpleasant and I am partly to blame for this, if only because I haven’t cultivated a habit of ignoring people, no matter how little they have to say – would I otherwise reply to you? exactly.
        Now, if arguing with me is more painful to you than the worst kind of dentist appointment (check out what Freud says about the symbolic significance of teeth btw), you’re certainly entitled to refrain from doing so.
        But screw you for calling me dishonest.

      • Contaminated NEET June 15, 2016 at 7:27 pm

        I really should be getting to my dentist appointment, but here I am replying to you. I guess you win.

        I call you dishonest because you are. You’re lying right now.
        >my initial post over at jim’s wasn’t intended to demonstrate the falsehood of his assertions
        The post in question:
        >I believe most of those things, and I’m not a conservative. Your argument is invalid.

        You’re a condescending, holier-than-thou liar, NRK. I’ll give you credit for one thing: you go and converse with people who disagree with you, even people who despise you, rather than block yourself into a bubble of approved opinion. It’s a shame you’re such a slimy, contemptible Pharisee.

      • NRK June 15, 2016 at 8:04 pm

        I didn’t deny that I have said that, have I? So screw you once more for calling me a liar.
        As I said, my statement wasn’t meant to be taken at face value (should be obvious from its rethorical form). I’d tell you to read between the lines, but then again, it’s just one line and I don’t now if that would make it easier, or harder.
        This notwithstanding, your repeated failure to ‘get it’ gives me every opportunity for justified condescension. What you’re experiencing as my sliminess is your own inability to get a grip.

  3. Frog Do June 14, 2016 at 12:54 am

    This is basically the difference between Protestant Christianity and Orthodoxy, and it’s why the former will never have any institutional longevity.

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