In the section titled "What are these ‘privileges or immunities’ anyway?”
You write "[i]t was the clause that could have applied the Bill of Rights to the states immediately, completely, and cleanly. Instead, we got selective incorporation through the Due Process Clause, one painstaking case at a time."
I would argue this was intentional and how the Founders envisioned constitutional change. Gradual and incremental progress acts as an inherent check on Judicial overreach and as an additional safeguard against tyranny. This view is further supported by James Madison's Federalist Papers. In Federalist 51, he argued that separating power and forcing a slow pace of significant change was essential to preventing any one branch from dominating.
Good point. The step-by-step approach does fit with Madison’s idea of slowing down big changes. If rights like free speech or jury trials could have applied to the states all at once, that might have given us clarity sooner, but it also could have sparked huge backlash and made the Court look like it was moving too fast—exactly the kind of overreach Madison worried about.
I appreciate the history behind the dates and reviewing the amendments by what was going on in the country at a macro level. Our constitution was drafted and signed when there was so much the drafters could not have known - the internet (when drafting about copyright protections), mass migration and technology like airplanes (when drafting about citizenship rights, etc), assault rifles and weapons of mass destruction (when drafting the second amendment).
The comparison to religious text is spot on. I hear people say "the ____ is clear . . . " when discussing different religious texts or the constitution and I find it interesting because so much of the argument, disagreement, history, and court cases stems from the fact that they are emphatically not clear. Within years of drafting the constitution came the need for amendments -- recognizing that when "We, the people" and our societal "norms" change, our laws should too.
I like the way you connect it to all the changes the framers couldn’t have imagined. That’s part of the design; the unclear parts make each generation work out what the words should mean in their own time. And just like with sacred texts, the debate itself is what keeps the words alive.
The text of the Constitution offering no mechanism for courts to enforce their own orders might have felt irrelevant last decade, but today, with Donald Trump explicitly acting against court orders in the case of the Venezuelan immigrant deportation, these problems feel more pertinent than ever. I would love your perspective on how this vagueness is contributing to the political and legal environment we're living in today.
Trump’s resistance in the Venezuelan deportation case exposes how much the system depends on norms rather than rules. Presidents used to comply because it was the right thing to do; that's no longer the case.
And with that, we have (1) increased polarization - Court decisions are viewed as political moves rather than neutral rulings, making it easier for leaders to claim defiance is justified. (2) institutional weakness - If the public sees that court orders can be ignored without consequence, judicial authority looks fragile, undermining the perception of the courts as coequal branches of government. (3) constitutional uncertainty - each clash between the President and the courts becomes a political fight rather than a legal one, fueling instability and distrust in government.
Interesting! I'd love to know more about this reliance on norms-- is this a feature or a bug in the constitution? Did the framers simply have an overwhelming trust in the American public, or was this an intentional choice?
The reliance on norms is very much an intentional feature. The framers designed a system that assumes each branch will exercise self-restraint rather than pushing its powers to the extreme. They didn’t want a hyper-detailed enforcement mechanism for every scenario because they feared that would invite more rigidity and potential abuse.
They also assumed leaders would be motivated by reputation and public accountability: defying a court order would be politically costly because citizens valued the rule of law. That trust was, in some ways, optimistic. It worked as long as leaders feared reputational harm, but when politics becomes polarized enough that defiance is rewarded rather than punished, the system’s reliance on norms feels like a weakness rather than a strength.
In the section titled "What are these ‘privileges or immunities’ anyway?”
You write "[i]t was the clause that could have applied the Bill of Rights to the states immediately, completely, and cleanly. Instead, we got selective incorporation through the Due Process Clause, one painstaking case at a time."
I would argue this was intentional and how the Founders envisioned constitutional change. Gradual and incremental progress acts as an inherent check on Judicial overreach and as an additional safeguard against tyranny. This view is further supported by James Madison's Federalist Papers. In Federalist 51, he argued that separating power and forcing a slow pace of significant change was essential to preventing any one branch from dominating.
Good point. The step-by-step approach does fit with Madison’s idea of slowing down big changes. If rights like free speech or jury trials could have applied to the states all at once, that might have given us clarity sooner, but it also could have sparked huge backlash and made the Court look like it was moving too fast—exactly the kind of overreach Madison worried about.
I appreciate the history behind the dates and reviewing the amendments by what was going on in the country at a macro level. Our constitution was drafted and signed when there was so much the drafters could not have known - the internet (when drafting about copyright protections), mass migration and technology like airplanes (when drafting about citizenship rights, etc), assault rifles and weapons of mass destruction (when drafting the second amendment).
The comparison to religious text is spot on. I hear people say "the ____ is clear . . . " when discussing different religious texts or the constitution and I find it interesting because so much of the argument, disagreement, history, and court cases stems from the fact that they are emphatically not clear. Within years of drafting the constitution came the need for amendments -- recognizing that when "We, the people" and our societal "norms" change, our laws should too.
I like the way you connect it to all the changes the framers couldn’t have imagined. That’s part of the design; the unclear parts make each generation work out what the words should mean in their own time. And just like with sacred texts, the debate itself is what keeps the words alive.
The text of the Constitution offering no mechanism for courts to enforce their own orders might have felt irrelevant last decade, but today, with Donald Trump explicitly acting against court orders in the case of the Venezuelan immigrant deportation, these problems feel more pertinent than ever. I would love your perspective on how this vagueness is contributing to the political and legal environment we're living in today.
Trump’s resistance in the Venezuelan deportation case exposes how much the system depends on norms rather than rules. Presidents used to comply because it was the right thing to do; that's no longer the case.
And with that, we have (1) increased polarization - Court decisions are viewed as political moves rather than neutral rulings, making it easier for leaders to claim defiance is justified. (2) institutional weakness - If the public sees that court orders can be ignored without consequence, judicial authority looks fragile, undermining the perception of the courts as coequal branches of government. (3) constitutional uncertainty - each clash between the President and the courts becomes a political fight rather than a legal one, fueling instability and distrust in government.
Interesting! I'd love to know more about this reliance on norms-- is this a feature or a bug in the constitution? Did the framers simply have an overwhelming trust in the American public, or was this an intentional choice?
The reliance on norms is very much an intentional feature. The framers designed a system that assumes each branch will exercise self-restraint rather than pushing its powers to the extreme. They didn’t want a hyper-detailed enforcement mechanism for every scenario because they feared that would invite more rigidity and potential abuse.
They also assumed leaders would be motivated by reputation and public accountability: defying a court order would be politically costly because citizens valued the rule of law. That trust was, in some ways, optimistic. It worked as long as leaders feared reputational harm, but when politics becomes polarized enough that defiance is rewarded rather than punished, the system’s reliance on norms feels like a weakness rather than a strength.