"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 But Congress has never withdrawn the promised reservation.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."
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 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.
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.
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.
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.
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?
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. 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. 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.
Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927); Louisiana (1927); and Colorado (1929). -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 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.
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.
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.
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.
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 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.
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.
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.)
Not convinced I'd want society to have unrestricted access to that one.
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.
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?
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: 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.
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.
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.
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.)
"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.
- 2020 New Zealand cannabis referendum 
- 2020 New Zealand euthanasia referendum 
- : https://en.wikipedia.org/wiki/2020_New_Zealand_cannabis_refe...
- : https://en.wikipedia.org/wiki/2020_New_Zealand_euthanasia_re...
Each state can decide its own approach, which I think is the appropriate principle for governance.
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.
> 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
It can, and has been - this is the origin of the so-called "Religious Freedom Restoration Acts".
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!
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.
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.
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.
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...
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.
EDIT: they have one each in 16 states, so not exactly “lone”
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.
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.
On what basis was the rest of Oklahoma not "adversely possessed"?
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.
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.
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.
English history gave us a very confusing legal structure, where there are statutes, (common) law, and equity -- all variously called "the law."
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?
In other words, in both cases the laws, as written, were followed.
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...
I agree that this sort of law is bonkers, but understand that no one has a "right" to own land. 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.
 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.
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. 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.
 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.)
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.)
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.
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.
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.
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...
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.
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.
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.
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.
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.
Depending on the reservation, you will find plenty of non-members that own property within the reservation.
They retain ownership, but can actually get something for it.
If you think about it, there isn't much of a difference between a 99 year lease and a 1-3% property tax.
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're referring to the New Territories portion of Hong Kong, that lease was from 1898 to 1997. That lease expired almost 25 years ago.
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."
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.
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.
It's bizarre that the headline could have read: Rape-related SC Decision Returns Land to Native American Tribe.
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 big news is precisely that formal recognition of Tribal (and, notably, treaty-conferred) authority.
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.
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.
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.