Quote:
Originally Posted by New Era
Your hypothetical thought experiment is ridiculous, unless you buy into the paranoia that the government is a totalitarian regime bent on destroying the fabric of society and turning us all into drones. There are limits to which you try and propose hypotheticals. Your extrapolation is to extreme. Mind you, there are people in this election cycle that support making Muslims wear a mark that identifies them as such, so maybe you aren't as nuts as you sound?
|
I think the problem here is a fundamental lack of understanding on your part as to how philosophy works. The entire point of a thought experiment is to be extreme and implausible, yet contain all the premises of the argument under discussion. If your position can't survive its application in "corner cases", or extreme thought experiments, it isn't internally consistent (in other words, it's flawed). Let me break it down again:
Premise: The constitution does not explicitly mention restriction lists.
Premise 2: If restriction lists are not mentioned in the constitution, no restriction list can be unconstitutional.
Conclusion: A weapons restruction list cannot be unconstitutional.
That is your argument as I understood it. I can go back and quote the portions of your post that suggest the above. I've challenged that argument by denying premise 2. To do that, I told a way that I thought you could have a restriction list that is unconstitutional. Whether that restriction list exists or will ever exist is completely beside the point. If I'm right that said hypothetical restriction list would be unconstitutional, then premise 2 should be rejected, and you need a new argument if you want to maintain your conclusion.
Quote:
|
Again, what you're missing is the law allows certain things to happen. The test of law is what ultimately defines if something is constitutional. Because something goes through the process as defined by the constitution makes it a constitutionally sound action. The law is created by congress in accordance with the constitution, making it constitutional. If someone disagrees they may use the courts to challenge the law and put it to a test and see if the court agrees that the law is constitutionally sound. That is the way the balance in the system works.
|
I'm telling you you're wrong about this. That's not how constitutional law works. Unconstitutional laws can be passed, and remain on the books for years, without anyone happening to challenge them.
For example, the Alberta legislature could very well enact a statute entitled, "The Alberta Criminal Code", which makes a bunch of new actions criminal in Alberta, complete with jail time resulting. That law is unconstitutional, regardless of whether anyone bothers to take it to court, because it flagrantly offends the division of powers sections in the 1867 act and specifically s.91(27). The moment it's passed, it's unconstitutional. Upon taking it to Court, the Court will undoubtedly agree that yes, it's unconstitutional, and strike it down. But it was already unconstitutional, the Court is just confirming that fact and giving it effect.
I mean, logically, the notion that it's not unconstitutional until a Court rules on it produces the absurd result that you actually couldn't go in front of a court to argue about constitutionality in the first place. If a law isn't unconstitutional until the Court says so, then you can't argue that the Court should say so on the grounds that it's unconstitutional.