[CorsiHockeyLeague]

Originally Posted by New Era

Again, context is important. A law can be passed and considered constitutional at the time, but as society evolves and new groups of peoples are afforded rights and recognized under the constitution, laws that were constitutionally then become questionable and open to challenge and redress.

I'm right there with you.

The founding fathers were the ones who drafted the constitution (okay, stole it from John Locke's Treatise on Government) yet they also stated that African Americans were 3/5ths of a person {...}

Well, this isn't a very good example because they actually needed the 14th amendment (among others) in order to pull a bunch of this off.

It is the interpretation of the constitution by examining it through our context that alters the constitutionality of something. The document remains the same, it is our interpretation that changes. So something that was considered constitutional back in 1789 may not be considered constitutional today.

I actually think this is the right way to approach this question, but you should of course be aware that this is fairly controversial and there are conservative judges sitting on the USSC who completely disagree.

However, for the reasons I expressed in my last post, even if granted, this is a very different thing from what you're suggesting about the process rendering things constitutional until challenged. In other words, if I accept this as the correct way to look at the issue, your central claim about how constitutional law works is still incorrect.

There are many times people complain that something government does is unconstitutional. An example of such would be executive directives. Of course they are constitutional. They are part of the executive powers in Article II. {...}
But because the President is using a power bestowed upon his office and following a defined executive process the executive order is constitutional.

It's not that simple, because Article II doesn't explicitly give authority to the President to make these orders, but let's assume you're right. This is a good example to use to make the point here.

Executive directives may, in general, be constitutional. But some of them may be unconstitutional because of their content. Hence, the bolded portion is incorrect. If Obama makes an executive directive that says, "No News Media May Critique My Use of Executive Directives", that would be an unconstitutional executive directive.

Your argument would necessitate that the directive is perfectly fine until taken to court. That's not how this works. It's unconstitutional the moment the order is made. Then joe citizen, or some news organization, goes to Court to ask the Court to provide an order recognizing that the directive is unconstitutional, and overturn it.

People may be confused about the powers granted in the constitution, or you may just be confused about what they're actually complaining about - are they complaining that the President can't make executive orders at all, or that he can, but the ones he's chosen to make are unconstitutional, because of their effect? Those are two different questions.

Sorry counselor, you may make an appeal to the crowd, and then try and lay burden of proof on me, but you are the one making claim of knowing something I do not, so burden is you to provide that clarification and education.

And you're making the claim of knowing something I do not, aren't you? The burden always lies on the person making the surprising claim. It's Russell's Teapot Lite.

As for why your claim is surprising...

You also cannot use the commonality of Canadian, Australian and UK law as a strategy to claim that, because these governments operate one way, the US must also operate in a similar fashion. Of course those three members of the commonwealth all operate the same way, they observe the parliamentary system of government, and share a common foundation for their constitutions. This is very different from the republican form of government the United States uses.

What we're talking about here is not the form of government, but the constitution and how that constitution is interpreted in the legal system in each country. The united states is a Common Law jurisdiction, just like Canada (except Quebec), Australia, the UK and others. This is in contrast to, for example, France, Belgium, Austria and Brazil, and others, which are civil law jurisdictions.

So, for example, UK court decisions aren't binding on Australian courts, but you can use them as precedent decisions in making your case. US court decisions aren't binding on Canadian courts, but you can refer to a US case and rely on it as persuasive up here. For example, I have a matter right now where the other side is using an unusual approach to calculating damages, which isn't often used in Canada but is widely used in the USA, so we have to rely on US case law. The reason we can do that is because our legal systems are so similar. The laws may be different, but the framework and the mechanics work in much the same way.

When it comes to the constitution, constitutions "work" a certain way within the legal system, which is the same in other common law jurisdictions. You're suggesting that, notwithstanding that the USA is a common law jurisdiction, the mechanism of how constitutionality is determined there is fundamentally different from other common law jurisdictions. That would be extremely surprising.

I've done a cursory look around to see if I can find anything that supports your interpretation and I can't. Moreover, reading about First Amendment law simply confirms that my view is correct. For example, I've been really interested lately, in light of some of the news stories late last year and a case that's working its way up to the SCC in Victoria right now, in first amendment cases on college campuses in the USA. There's an organization called FIRE that acts as a sort of watchdog over university speech codes, and puts out a report describing which ones are constitutional and which aren't. This would be completely impossible if your view of constitutional law were correct.

The other reason your claim is surprising is that as I said above, if true, it would render all Court decisions on constitutional law inherently arbitrary. That doesn't make any logical sense.