Bardali and I have been arguing over U.S. constitutional law in the context of a more general argument about Evo Morales serving three consecutive presidential terms and running for a fourth.
First, let me point out that Bardali has not answered the following questions:
It is really very unlikely that the 13th Amendment will be repealed. Is any Congressperson currently proposing to do this?
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In this case, would you say, “since the Supreme Court said it was OK to disregard the Constitution, that’s fine, Trump can continue being President as long as he keeps winning elections”?
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Do you think that a repeal of the 13th Amendment is likely?
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What do you think the probability of a repeal would be in the next (say) 5 years?
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My major points still stand: 1) I think it is pretty far-fetched that the 13th Amendment would be repealed. 2) “in the 21st Century, almost every country has legally abolished chattel slavery” and this shows the world’s general distaste for slavery, though some forms of slavery are accepted in the case of prisoners. If you disagree with my major points, again, what do you think the probability is of a repeal of the 13th Amendment within (say) 5 years?
I would welcome a response from Bardali to these questions.
Bardali stated «MW [Merriam-Webster] has literally 0 legal authority.»
I wonder how Bardali would reconcile this belief with the following:
Judges, like the rest of us, turn to dictionaries when they’re not sure about the meaning of a word. Or they turn to dictionaries when they’re sure about a word’s meaning, but they need some confirmation. Or they turn to a dictionary that defines a word the way they want it defined, rejecting as irrelevant, inadmissible, and immaterial any definitions they don’t like.
The Supreme Court has referred to dictionaries in its opinions over 664 times. In recent years, almost every major case and many minor ones find the justices, or their clerks, thumbing through Webster’s Third or the Oxford English Dictionary. And it’s not just high-profile cases like District of Columbia v. Heller, the one about the Second Amendment, where definitions of words like militia and bear arms came into play. While he was writing an opinion in a patent case, Chief Justice John Roberts looked up words in five different dictionaries. When was the last time you looked up a word in more than one dictionary?
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In 2003, Merriam-Webster’s Collegiate Dictionary (11e), an authority frequently cited by the courts, added same-sex unions to its definition of marriage:
1a (1) the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage.
Bardali, if you’re reading this, let me ask you directly: «How do you reconcile your belief that «MW has literally 0 legal authority» with the fact that Supreme Court justices frequently refer to dictionaries, including Merriam-Webster in their rulings?»
Bardali made the claim: «Yes, but there is nothing in the Consitution [sic] that suggest [sic] an Amendment can repeal another amendment.» See https://twitter.com/BardaliSays/status/1287430587104538626
Bardali, first of all, the 21st Amendment has already repealed the 18th Amendment. Do you not accept that as reality? Secondly, the fact that one amendment can repeal another comes from the meaning of the word «amendment.» Here is the definition from the 1st edition of Black’s Law dictionary:
In practice. The correction of an error committed in any process, pleading, or proceeding at law, or in equity, and which is done either of course, or by the consent of parties, or upon motion to the court in which the proceeding is pending.
Any writing made or proposed as an improvement of some principal writing.
In legislation. A modification or alteration proposed to be made in a bill on its passage, or an enacted law; also such modification or change when made.
Since the Constitution did not redefine the word amendment, there is no reason to believe that the writers of the Constitution intended any meaning other than a standard definition, such as can be found in a dictionary. Likewise, there is no reason to believe that other words like «we, people, order, to,» etc. that appear in the Constitution mean something other than their standard dictionary definitions.
Here is the definition of «repeal» from the 1st Edition of Black’s Law dictionary: «The abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated.»
Bardali also claimed that «Chattel slavery is perfectly legal in the US, as long as it’s part of a punishment.» See https://twitter.com/BardaliSays/status/1287430992265912320
No, chattel slavery is not perfectly legal in the U.S. as long as it’s part of a punishment. You cannot buy, sell, or inherit prisoners as chattel. Nor are their children automatically enslaved. See https://aaregistry.org/story/chattel-slavery-in-america-a-definition/ That would be cruel and unusual punishment, prohibited by the 8th Amendment. As for the argument that the 13th Amendment overrides the 8th Amendment, I repeat:
Is there a conflict between the 8th Amendment and the 13th Amendment on this matter? We would need to look at the wording of the two Amendments carefully.
8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
13th Amendment: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The 13th Amendment indicates that slavery and involuntary servitude are allowable punishments for crimes, but it does not explicitly state that chattel slavery or other cruel and unusual forms of slavery are allowable. Currently, we have prison labor working as slaves or in slave-like conditions, but not in chattel slavery, and this seems to comply with both the 8th and 13th Amendments. It would be another matter if the 13th Amendment explicitly repealed the 8th Amendment or if it said something like “except as a punishment, which may even be cruel and usual…”
Reviewing Granholm v. Heald should help to clarify the applicable legal reasoning:
The context of the 21st Amendment, they wrote, was to return to the status quo that existed before Prohibition, making it clear that the states had the power to regulate alcohol however they wished, including banning alcoholic beverages entirely within the state if desired. Before Prohibition, the states did not have the power to violate the Dormant Commerce Clause, and the 21st Amendment was not intended to grant them this power.
https://en.wikipedia.org/wiki/Granholm_v._Heald
We can similarly say that the 13th Amendment was not intended to grant the power to inflict cruel and unusual punishment and if that had been the intention, it needed to make an explicit statement to that effect to make that clear, just like the 21st Amendment explicitly states that it repeals the 18th Amendment.
Bardali also wrote «Who decides what the constitution means if not the Supreme Court ?»
Ultimately «the people» are the «fountain of legitimate authority.»
The reason why the idea of a convention could bring legitimacy to the proposed Constitution and to the Philadelphia Convention’s decision to violate the Articles highlights the first major subject of the volume—a subject that doubles as the architectural foundation of constitutional amendment rules: the constituent power. The theory of constituent power springs from the thought of Emmanuel Joeph Sieyès, an 18th century French theorist who argued that the people were the fountain of legitimate authority. Sieyès distinguished the pouvour constituant from the pouvoir constitué, the former referring to the people themselves acting in their constitution-making capacity and the latter to the institutions the people create—institutions that are authorised only to change the Constitution within the constitutional framework created by the people themselves.
– The Foundations and Traditions of Constitutional Amendment edited by Richard Alberi, Xenophon Contiades, and Alkmene Fotiadou
Previously, I wrote «If the 13th Amendment were to be repealed, I would not accept the repeal and I’m sure that I am not alone in this – this could be a civil war scenario. However, considering that “in the 21st Century, almost every country has legally abolished chattel slavery” (Wikipedia), this seems like a pretty far-fetched scenario to me. For something like that to come to pass in this modern age, a major subversion of the will of the people would have to have occurred. Probably military intervention or popular uprisings would remove the proponents of a repeal of the 13th Amendment from power well before another civil war could develop.»
If the 13th Amendment were to be repealed, I believe that the people would assert their constituent power and would rise up to set things right.
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