Why isn't the constitution the foundation of most political disagreements in Canada, Germany, the Republic of Ireland, New Zealand, Portugal, or Japan?
Because we don't think it was written by God's divine providence.
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So a cop gets shot in philly by some Wack job claiming to do it on behalf of Allah.
I think it will get interesting if the U.S. rights two obsessions, guns and Muslim (black) terrorists intersect as the rights knee jerk response to this would be normally to remove rights.
Okay, not to appeal to authority, but you understand I do this for a living, right?
Yes, not to appeal to authority or anything, but do you understand that what I do this for a living requires I understand this stuff in depth? That working with/in government in a compliance capacity, with daily access to DHS information and access restriction lists, and daily interactions with legal counsel on this very subject, gives me some really good idea of how this stuff works. So while I acknowledge your status as having Canadian legal expertise you won't mind if I ask that you respect my expertise while actually working within the system in question. Your theoretical perspective is acknowledged, but living it every day certainly provides me a perspective and insight that you don't have.
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Stop for a moment and consider whether or not I'm likely doing so in a state of "woeful ignorance" about how constitutional law works.
That comment was not directed at you specifically and was more of a general comment. Your comments on jurisprudence was on the money showing a much advanced understanding of the topic than most. The comment was directed more at those who think that something is unconstitutional just because their interpretation says so. Unless you understand the inner workings and process of government you are likely going to have much better understanding of things than just reading the Bill of Rights.
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Now, it's possible that I'm wrong - nothing you've said so far has been at all convincing on that point, but maybe you'll say something new and different soon that alerts me to some idiosyncracy in the US system that I wasn't aware of and is fundamentally divergent from other common law traditions in this area. That's a reasonable possibility, and I'd be open to learning something new. But at the moment, it seems like you've just had counsel explain something to you and you've gotten one small piece of it wrong, and have emotionally committed to that error.
With respect please articulate where I have been wrong in explaining how the system works. I suspect this is going to devolve into an argument of semantics.
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Only then deemed unconstitutional. But the implication when they're ultimately overturned is that they always were, and we were just wrong about it before. Consequently, previous decisions suggesting that a law was constitutional, which is now being struck down, are overturned, and no longer binding.
But they weren't wrong before that. As social context changes and society evolves laws that were constitutional can become out dated and unconstitutional. African Americans were considered 3/5ths of a person and not granted constitutional protection. Laws were passed that were considered constitutional at that time that hurt African Americans. Things changed and it took constitutional amendment to make those laws unconstitutional. Changes are only made as challenges and tests are made.
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Overly literalist view of the constitution, I think. The second amendment (as it's been interpreted by the USSC, anyway) guarantees the right to own guns, within reasonable limits that can pass the appropriate level of constitutional scrutiny. So, if you have a limit that's aimed at a public good like public safety, and a means that's reasonably connected to it that doesn't overreach the policy goal (e.g. a list restricting ALL guns would be struck down), you're probably okay to legislate that. If you have a limit that's not aimed at a public good - in this case, helping the good people at Glock USA obtain a monopoly over the industry - you're not okay, that's getting struck down. And it'll be struck down regardless of the legislators' following the correct process to enact it.
Okay, please explain further. The monopoly angle is a completely different kettle of fish. You were saying that congress could not pass a law with a single manufacturer as a key component based on constitutional law. There is nothing in the constitution that says congress cannot enact such law. Said law would not impact the 2nd amendment, nor the freedom of choice. I agree that anti-trust and competition laws may preclude such a law, but constitutional law would not have a bearing. Please educate me on where this is wrong, and feel free to reference the constitution and case law to support your claims.
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Originally Posted by CliffFletcher
I understand that. But I don't understand why.
Why isn't the constitution the foundation of most political disagreements in Canada, Germany, the Republic of Ireland, New Zealand, Portugal, or Japan?
Cliff, I wish I could answer that question. I think the cultural divide (north/south, conservative/liberal, etc.) greatly impacts this, but I also think the unwillingness to change the language in the document itself is the biggest problem. Context is important, and the context of the 21st century is not represented in the Bill of Rights. I think other nations have superior documents and systems because they respect context and keep those living documents updated. To me there is too much reverence granted to the founding fathers and the belief of their infallibility is a big part of the problem as well. Jefferson and Madison were both brilliant thinkers in their day, but truth be told they stole their ideas from other sources, yet that is never acknowledged. If we could get past some of these challenges we might be able to update the language in the constitution to where it was very clear and more representative of our modern context. I believe the removal of the ambiguity would be a step in the right direction and lead to a much more civil nation.
Last edited by Lanny_McDonald; 01-08-2016 at 12:10 PM.
The comment was directed more at those who think that something is unconstitutional just because their interpretation says so.
Well, their interpretation might well be correct, and the Court's might well be wrong. That applies even in the case of a unanimous decision, but it should be made obvious by the fact that dissenting judgments are a thing.
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With respect please articulate where I have been wrong in explaining how the system works. I suspect this is going to devolve into an argument of semantics.
I think I have - your statement that any enacted statute is constitutional, provided that it follows the appropriate process to be enacted into law. Then, it can be challenged in Court, and if the Court agrees, the law becomes unconstitutional when the Court rules on it That's my understanding of how you think the framework works. So, where I'd say you're wrong is - and I think I put it in precisely these terms - the law was already unconstitutional; the Court merely recognizes that it is once a constitutional challenge is made. In other words, you need a Court order recognizing this fact in order to give any effect to that unconstitutional status.
I'll give you a further example based specifically in US jurisprudence (though similar principles exist in other common law jurisdictions). Imagine a statute that for the sake of argument, we will say clearly violates the first amendment. However, it can be applied in a number of ways. Imagine that the statute is applied to a defendant, but just because of the peculiar circumstances of his case, it wasn't applied in a manner that offended first amendment principles in any way. In that case, the Court may recognize that the statute is unconstitutional, and they might say so in the judgment - but because of the facts, and establish judicial rules that restrict the things that can be ruled on in a particular case, they're not permitted to rule on that issue and the law will not be struck down. They have to wait until a case comes before them that applies the unconstitutional statute in a way that violates first amendment principles. Until that case comes up, you've got a law that everyone acknowledges is unconstitutional, but still in effect because the right case hasn't come before the USSC yet.
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But they weren't wrong before that. As social context changes and society evolves laws that were constitutional can become out dated and unconstitutional. African Americans were considered 3/5ths of a person and not granted constitutional protection. Laws were passed that were considered constitutional at that time that hurt African Americans.
We're actually getting into constitutional legal theory as opposed to practical application here, but really, my earlier explanation was overly simplistic for the benefit of being colloquial. Really, my saying "it was always right, we just didn't realize it until our society evolved to a point where it became apparent" is correct only if you view constitutional meaning as largely adamantine. It's a very "Antonin Scalia" sort of view. The other, more nuanced view is that the constitution is a living document, and the meaning of the words on the page evolves over time to cohere with American societal values. If you accept this theory, then a statute could go from being constitutional to unconstitutional over time. You could say, for example, that laws prosecuting homosexuality were constitutional a hundred years ago, but the exact same law on the exact same terms isn't constitutional today.
However, this is a very different thing than what you're suggesting, which is that the law would be constitutional today if it were enacted, right up until a Court gets to strike it down. I still disagree - it is the content of the law that makes the law unconstitutional, not the act of the Court pronouncing it to be so. The law is inherently constitutional or unconstitutional.
And, incidentally, this is why I referenced the Euthyphro: it makes no sense to suggest that the constitutional character of a law rests solely in a Court's decision. That would necessarily mean that all Court judgments on constitutionality are inherently arbitrary.
This is just how constitutional law works, in Canada, in Australia, in the UK, and as far as I know, in the United States. Your view of how things work down there would mean that the US is vastly different, in a way that I don't think coheres at all with the purpose of a constitution as an organizing document. So I think it's you that really needs to bear the burden of establishing that, indeed, the US system is different from everyone else's in this way, and hopefully give some context as to why that might be.
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Originally Posted by New Era
Okay, please explain further. The monopoly angle is a completely different kettle of fish. You were saying that congress could not pass a law with a single manufacturer as a key component based on constitutional law. There is nothing in the constitution that says congress cannot enact such law. Said law would not impact the 2nd amendment, nor the freedom of choice. I agree that anti-trust and competition laws may preclude such a law, but constitutional law would not have a bearing. Please educate me on where this is wrong, and feel free to reference the constitution and case law to support your claims.
Let me first be clear: I'm not saying Congress couldn't pass such law. I'm saying that whether they passed it or not, it would be, ab initio, an unconstitutional law, and would end up being struck down once challenged.
The 2nd amendment is engaged every single time a law is applied in such a way as to restrict access to gun ownership. That doesn't mean every law that engages 2nd amendment protections should be struck down, because of the test you were talking about earlier - the judiciary has established a series of judicial review protocols that they have to go through to determine whether a law that restricts gun ownership is unconstitutional.
In the present case, where we're talking about weapon restriction lists, that protocol requires that two main questions need to be asked: first, does this law promote important government policy goals, and second, that the method used to promote that goal is reasonably closely related to that interest (to prevent overreaching).
When you're trying to enact a weapon restriction list, the public policy goal you're going for is presumably public safety. That's an important goal. But is the method you're using related to it? Well, in this case, where we're talking about a restriction list that says "you can only buy guns made by Glock", the answer is no. This is because it doesn't actually further public safety to restrict the public's access to guns by only allowing them to buy one brand. Glock's guns aren't any safer than their competitors', as far as I know.
Further, the Court might (I think they likely would) find that the purpose of a statute like that isn't public safety at all. Rather, there's a better explanation for why the legislator enacted this law: he has some reason for wanting to enhance Glock's business interests.
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Not sure why it is so confusing. The 4th amendment says all Americans have the right to due process. Being put on a no fly list without question is not due process. If there was a way for someone on the no fly list to challenge why they are on the list that WOULD be due process. There isn't, therefore the no fly list goes against the 4th amendment and is unconstitutional.
Apply the same argument to every list you want to make that actually makes it through the courts and is upheld as any kind of law.
For example, this is a matter of procedural due process, which requires that a Court consider the importance of the private benefit that's at stake, the likelihood that that interest will be erroneously deprived (eg in this case whether you'll be put on the list incorrectly), as compared to some substitute procedure used instead of this one, and also the government interest that's being protected by this measure, and how much more onerous it would be for the government to achieve its aims in another way. That can be a nuanced and difficult maze of arguments to meander through, and at the end of the day it's a difficult balancing exercise between rights and public policy... so yeah, it's very complicated.
I'm not saying you're wrong, at the end of the day, that the no fly list is unconstitutional because it doesn't afford much opportunity for redress. In Canada, you can start a JR for basically ANY ministerial or delegated decision - things are a bit different down south in that regard.
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Unsurprisingly, based on my reading of this blog post (https://www.lawfareblog.com/changes-...udicial-review), there is indeed an internal appeal process to have one's inclusion on the no fly list reviewed by an administrative tribunal. That tribunal's decision is of course reviewable by the courts.
That said, I think that there are definitely problems with the no fly list regime. For example, people don't recieve notice if they're placed on the list. That doesn't seem fair.
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Because you are not acknowledging the complexities of due process. It is much more complicated than saying an amendment affords this right, and think that is the end of it. There are many procedures that apply in due process and the extension and protection from certain legal processes.
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The 4th amendment says all Americans have the right to due process.
Actually, the 5th and the 14th amendments afford the right of due process. The 4th amendment prohibits unreasonable search and seizure. Ironic that you bring up the 4th amendment, because the 4th amendment is actually the one that introduces the concepts of due cause or probable cause, which allows the investigation and inclusion of individuals on restriction lists.
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Being put on a no fly list without question is not due process.
If there is probable cause you can be investigated and restricted based on suspicion. If you are accused of domestic violence, and the there is evidence to take out a warrant, search or otherwise, you will be placed on a weapons restriction list. If you suspected of being a threat to aviation systems, and a warrant is issued during an investigation, you will be placed on a restriction list, and not afforded the right of due process. Both of these instances are in the public's best interest and comply with law. This is not unconstitutional as you are still under investigation due to probable cause, and until a criminal or civil process is initiated you have no reason to be afforded due process.
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If there was a way for someone on the no fly list to challenge why they are on the list that WOULD be due process.
There is a process. This has been mentioned before.
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There isn't, therefore the no fly list goes against the 4th amendment and is unconstitutional.
You're right, there isn't a no fly list that goes against the 4th amendment.
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Apply the same argument to every list you want to make that actually makes it through the courts and is upheld as any kind of law.
As has been discussed, there already are processes in place that make this 100% legal. Just because you don't understand the process does not mean that it is unconstitutional. That is one of the biggest problems in the US. The average person who claims to be a constitutionalist doesn't really know how the constitution works. They conflate the Bill of Rights with the constitution, not recognizing the seven articles that define government and processes of government. The worst part is they don't comprehend the judicial review process and the influence this holds on deciding the constitutionality of law and process itself. Could this be a challenge for you as well?
A Muslim woman wearing a hijab was escorted out of Donald Trump's campaign event on Friday by police after she stood up in silent protest during Trump's speech.
Rose Hamid, a 56-year-old flight attendant sitting in the stands directly behind Trump, stood up Friday during Trump's speech when the Republican front-runner suggested that Syrian refugees fleeing war in Syria were affiliated with ISIS.
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As they were escorted out, Trump supporters roared -- booing the pair and shouting at them to "get out." One person shouted, "You have a bomb, you have a bomb," according to Hamid.
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"There is hatred against us that is unbelievable," Trump said. "It's their hatred, it's not our hatred."
A lengthy article from Politico about the policy achievements of the Obama presidency. Spoiler alert: Nobama won't like this article, it's rather glowing of Obama's policy accomplishments, if skeptical of his political ones.
Over the past seven years, Americans have heard an awful lot about Barack Obama and his presidency, but the actual substance of his domestic policies and their impact on the country remain poorly understood.
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Even Republicans like Ted Cruz and Marco Rubio, who hope to succeed Obama and undo his achievements, have been complaining on the campaign trail that he’s accomplished most of his agenda.
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It’s remarkable how often Obama has gotten what he wanted, in many cases policies that Democrats (and sometimes moderate Republicans) have wanted for decades, and how often those policies have slipped under the radar.
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The results are pretty straightforward. The economy was bleeding 800,000 jobs a month when Obama took office; it has now enjoyed a record 69 straight months of private-sector job growth, though economists disagree about how much credit Obama deserves for the recovery, and in any case wage growth has been tepid. The deficit has shrunk by nearly $1 trillion, and Medicare’s long-term solvency has been extended by 13 years. The resuscitated auto industry produced 11 million vehicles in 2014. Federal contractors can no longer discriminate against gays, women can now serve in combat and the rich are paying higher taxes. A new Consumer Financial Protection Bureau is policing unscrupulous mortgage brokers, payday lenders and other rip-off artists, and the financial system has much less risky leverage.
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Before Obama, Americans were using more energy every year; now we use less energy overall, and more of that energy is clean. Oil imports are down 60 percent from 2008 levels, more than a third of America’s coal plants are shutting down and sales of LED bulbs have increased 50-fold. Health care inflation and the uninsured rate have fallen to their lowest levels in half a century, and doctors now use iPads instead of clipboards. Student borrowers can now ratchet down their monthly payments to 10 percent of their discretionary income and get their loans forgiven after 20 years, rules that are gradually and almost silently easing the student debt crisis.
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a $25 billion incentive program in the stimulus for health information technology has helped drag a pen-and-paper medical system into the digital age, with adoption soaring from about 10 percent of hospitals and 20 percent of doctors in 2008 to about 80 percent of hospitals and 80 percent of doctors today.
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The stimulus also offered an introduction to Obama-ism. Purity was not a priority. He needed three GOP senators to avoid a filibuster, so he caved to their demands, including an $800 billion cap and the removal of a $10 billion initiative to renovate America’s schools.
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Obama’s new consumer bureau may be the most influential new regulatory agency since the EPA, already collecting more than $10 billion in fines from financial players that used to enjoy relative impunity.
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But behind the headlines about access, Obamacare had another set of even more transformative goals for the system. ... America’s long-term fiscal problems were almost entirely health care problems ... The obstacle to cost control was that no one was sure how to do it. There were dozens of ideas floating around ... Obama insisted on including almost all of them. Less than one-fourth of the bill was devoted to access. The rest was stuffed with almost every cost-control idea in circulation.
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And so far, the cost curve is bending even faster than White House officials had dreamed. Health care is still getting more expensive, but since 2010, the growth rate has slowed so drastically that the Congressional Budget Office has slashed its projection for government health spending in 2020 by $175 billion.
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GOP critics have hammered away at Obama’s false promise that all Americans who liked their plans would be able to keep them, at an Obamacare adviser who suggested voters were stupid, at the fiasco with its website, at the unpopular “individual mandate,” at problems with exchanges and co-ops and other new planks of reform. Patients have complained about high deductibles and heightened uncertainty; many providers are unhappy about reduced reimbursements; a frenzy of mergers is reshaping the entire industry. ... Meanwhile, much of the left is still upset that Obama didn’t push for the “public option,” a government-run insurer that could have helped cut costs by competing with the private sector but that didn’t have 60 votes in the Senate.
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Obama has certainly had memorable rhetorical moments: his rendition of “Amazing Grace” in Charleston, his meditation on civil rights in Selma, even his observation that Trayvon Martin could have been his son. ... But his minimum-wage push stalled in Congress, as did his public pushes for universal pre-K, free community college and paid parental leave. Obama made some of his most eloquent speeches after the massacres in Tucson, Newtown and Charleston, but the gun control bills he pushed went nowhere.
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The outside game has been vastly overrated in the Obama era. For all the change he’s driven, there hasn’t been much in the hearts-and-minds arena. Instead, Obama has relied on the inside game. Since 2011, that’s meant executive orders, regulations and other unilateral actions.
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He couldn’t pass a law requiring employers to provide paid sick leave, but he did issue an executive order requiring federal contractors to do it. ... He protected the world’s largest marine reserve in the Pacific Ocean and 19 other national monuments without any input from Congress. ... Now his administration is finalizing a “fiduciary rule” that will require financial advisers to serve the best interest of their clients.
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Obama’s most aggressive uses of Washington’s levers of power have involved energy ... a slew of lesser-known restrictions on soot, mercury, sulfur dioxide, smog and other coal-fired pollutants have already helped force nearly one-third of America’s coal plant capacity into retirement, getting the sector more than halfway to its carbon goal before the carbon rule was even announced. ... the most ambitious plank of the Climate Action Plan, accounting for half of its emissions goals, has been practically invisible. It’s an energy efficiency effort known as “appliance and equipment standards.” It’s on track to slash 3 billion tons of emissions by 2030; that’s the equivalent of taking every car off America’s roads for two years, or shutting down every power plant for a year and a half
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Obama’s new standards for industrial motors and fluorescent lighting have each produced record electricity savings—and the upcoming rule for commercial air conditioners will surpass them by far.
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“They’re hell-bent to ram through as many rules as they can, as fast as they can, at the highest levels they think they can justify to a judge,” says Stephen Yurek, president of the Air Conditioning, Heating and Refrigeration Institute.
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There’s been a special focus on greening the Pentagon ... the Air Force has already cut its carbon footprint 21 percent since 2008, through changes like LED-lit runways and fuel-efficiency upgrades for a fleet of jets larger than all U.S. airlines’ combined.
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But any evaluation of Obama’s policy legacy has to grapple with the fact that it’s been a political debacle for most Democrats who aren’t named Obama. The GOP now has an iron grip on the House and a solid majority in the Senate; compared with 2009, there are 10 additional Republican governors and some 900 additional Republican state legislators.
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The resurgent Republicans made spending cuts their top priority, threatening to shut down the government or force it into a catastrophic default if Obama didn’t agree to a retrenchment. ... That fiscal squeeze, along with Obama’s tax hikes and the economic recovery, has helped reduce deficits from an unsustainable 10 percent of GDP to a relatively stable 3 percent. But it also threatens the future of Obama’s progressive project.
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2016 will be in part a referendum on the Obama era, even if the Democratic nominee is named Clinton, even in the increasingly unlikely event the GOP nominee is named Bush. ... When I put this to Obama’s political aides, they acknowledge everything isn’t amazing, especially middle-class wage growth ... Obama’s Change We Can Believe In is clearly less resonant today than it was as an alternative to Bush in 2008.
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while his team was focused on policy, nobody in the White House thought they wouldn’t have to sell it. And they tried to.
It just didn’t sell. The question is why, a question I can’t answer, but a question that matters for 2016.
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It may be that, just as Americans wanted to Do Less abroad after Bush, they’ll look for someone who will promise to Do Less at home after Obama.
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if Democrats do manage to hold the White House, Obama’s domestic legacy as a Do More guy will be safe. The prevailing media narrative of his era has been all about Washington paralysis, but the prevailing historical narrative is much likelier to focus on social and economic change, for better or for worse. For those of us who follow policy and politics in real time, that gap between perception and reality in the Obama era ought to be a BFD.
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Most think it's wrong but Trump is just spreading what a lot of americans feel, In case you have just crawled from under a rock I'll let you in a secret, Non believers of radical Islam are under attack across the world!
I'm guessing by your posts you or at least your family are muslim and you feel you have to defend but the real filth is the percentage of muslims who hate everything about western civilization yet a lot still live here. how about you/your family stand up at your mosque and denounce groups like ISIS, defend woman's rights and thank your lucky stars you live in a truly free country where all you really have to worry about is how much taxes you pay.
The best way to stop idiots like Trump is to prove them wrong not to try and bash them. Like they say "don't feed a troll"
The immigrant thread really warmed my heart, especially after reading a lot of negativity on the board lately, and then I come in here and see your tired religion bashing. Give it a rest. How do you know he doesn't already do the things you told him to?
Don't attack a guy who isn't a part of the problem. He has no more obligation to fight ISIS than you or I do.
First, thanks for the post. Some really great stuff in there that shows we aren't that much off in our interpretations. Just a couple issues to expand on or address, because I think they are still foggy.
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Originally Posted by CorsiHockeyLeague
I think I have - your statement that any enacted statute is constitutional, provided that it follows the appropriate process to be enacted into law. Then, it can be challenged in Court, and if the Court agrees, the law becomes unconstitutional when the Court rules on it That's my understanding of how you think the framework works. So, where I'd say you're wrong is - and I think I put it in precisely these terms - the law was already unconstitutional; the Court merely recognizes that it is once a constitutional challenge is made. In other words, you need a Court order recognizing this fact in order to give any effect to that unconstitutional status.
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. Examples of this would be when African Americans gained personhood, women received voting rights, women's equal rights were recognized, gay rights were recognized, protections for the Americans with disabilities, etc. These developments made past laws then unconstitutional. I think you recognize this when you said this:
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We're actually getting into constitutional legal theory as opposed to practical application here, but really, my earlier explanation was overly simplistic for the benefit of being colloquial. Really, my saying "it was always right, we just didn't realize it until our society evolved to a point where it became apparent" is correct only if you view constitutional meaning as largely adamantine. It's a very "Antonin Scalia" sort of view. The other, more nuanced view is that the constitution is a living document, and the meaning of the words on the page evolves over time to cohere with American societal values. If you accept this theory, then a statute could go from being constitutional to unconstitutional over time. You could say, for example, that laws prosecuting homosexuality were constitutional a hundred years ago, but the exact same law on the exact same terms isn't constitutional today.
The important part being the bolded part. Of course things can be constitutional in one historical context, then not in another. 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 and did not provide personhood to women. In their social context the document they drafted was all inclusive at the time and was a reflection of their social standards. In our evolved society many of those social standards have changed and our interpretation of the ambiguity of the constitution has given us pause to consider inclusion and rethink some of the past laws and then make them unconstitutional. 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.
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However, this is a very different thing than what you're suggesting, which is that the law would be constitutional today if it were enacted, right up until a Court gets to strike it down. I still disagree - it is the content of the law that makes the law unconstitutional, not the act of the Court pronouncing it to be so. The law is inherently constitutional or unconstitutional.
And it looks like we are going to have to agree to disagree here. The process does make things constitutional. 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 people don't know that or understand the processes developed over the decades that allow the use of this mechanism. Just because the process is not understood does not make it unconstitutional. But because the President is using a power bestowed upon his office and following a defined executive process the executive order is constitutional. The same thing applies to the creation of law.
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This is just how constitutional law works, in Canada, in Australia, in the UK, and as far as I know, in the United States. Your view of how things work down there would mean that the US is vastly different, in a way that I don't think coheres at all with the purpose of a constitution as an organizing document. So I think it's you that really needs to bear the burden of establishing that, indeed, the US system is different from everyone else's in this way, and hopefully give some context as to why that might be.
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. 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. The US also drafted their constitution to be very different, structured on that republican format. You cannot compare constitutions from the two countries because they are very different at the core of how the two government works. So of course the US constitution is going to be very different, because it is a completely different form of government than the other three countries use.
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.
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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.
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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.
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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.
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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...
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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.
__________________ "The great promise of the Internet was that more information would automatically yield better decisions. The great disappointment is that more information actually yields more possibilities to confirm what you already believed anyway." - Brian Eno
Last edited by CorsiHockeyLeague; 01-09-2016 at 10:00 AM.
T@T, my family and I are pretty secular. More so, I consider myself an atheist. We haven't stepped inside a mosque since we've been in Canada, none of us prayer 5 times a day (I don't even know how to), and no one in my family wears a hijab. Learning the language and culture was more important to my family than religion.
I'm just a normal guy like yourself, but that doesn't mean I don't sympathize for those who practice Islam in the US and the #### they must be going to through in the Trump-supported states.
You talk about standing up to Islamic radicalism...well what about the radicalism that Trump is spreading openly?
I believe that has a huge potential to be even more dangerous than Islamic radicalism, simply because it's encouraged by a top ranking politician in the western world.
I also don't think the majority of Americans support Trump, just like the majority of Muslims don't support radicalism.
I can't even imagine what would happen if he 'won'. Here's to hoping be gets crushed and crawls back under the rock he came from.
Last edited by Looch City; 01-09-2016 at 10:44 AM.
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You talk about standing up to Islamic radicalism...well what about the radicalism that Trump is spreading openly?
What about them? Both are bad.
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I believe that has a huge potential to be even more dangerous than Islamic radicalism, simply because it's encouraged by a top ranking politician in the western world.
I disagree, because while Trump's proposed policies are lunatic idiocy, they don't include the intentional mass murder of innocent people for failing to subscribe to said lunatic policies.
And he's probably not going to be able to follow through on many of them anyway, even if elected, which is a longshot.
This isn't to say that I don't think his rhetoric is dangerous; I think it definitely is. There are going to be some disillusioned Trump followers when he fails, who could do some crazy, frightening things.
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I also don't think the majority of Americans support Trump, just like the majority of Muslims don't support radicalism.
"Radicalism" is too vague. You really need to break it down. Does believing that anyone who leaves Islam should be executed constitute "radicalism"? How about just imposing the Reliance of the Traveller as state law worldwide? Does that count?
Also, "the majority of Muslims" not supporting radicalism still leaves hundreds of millions of people supporting some pretty radical ideas in many places on this planet.
Thankfully, none of those places is the USA or Canada... not that ISIS-like interpretations of Islam don't exist here, but they're much more marginalized and need to stay that way.
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Radicalism begins with religion and hatred. ISIS has Islam and their hatred. Trump has Jesus and his hatred that he's spreading.
I think "dogma" is more accurate in the case of Trump because he doesn't really rely on religion so much as xenophobia and fear.
__________________ "The great promise of the Internet was that more information would automatically yield better decisions. The great disappointment is that more information actually yields more possibilities to confirm what you already believed anyway." - Brian Eno
I agree with your points Corsi, it's a stretch to compare the two directly. I was just making the point that the stuff Trump is spreading is eerily similar to ideas in radical Islamism (obviously not the crazy crazy ideas).
