9 ms·

If it were all a matter of interpretation we wouldn't need an actual written constitution. If it were all up to judges the constitution wouldn't be on display

by jqm 11y ago

If it were all a matter of interpretation we wouldn't need an actual written constitution. If it were all up to judges the constitution wouldn't be on display and would be written in Latin or somesuch. But the constitution is public, readable and fairly plain. Now maybe the constitution is outdated. Maybe it should be changed. I don't know that. But from what the constitution reads at this point a number of these measures are manifestly unconstitutional, and it doesn't take a mosque full of Koranic scholars to ascertain that.

eropple 11y ago
> If it were all a matter of interpretation we wouldn't need an actual written constitution. This is false, given that there is no settled jurisprudence until interpretation happens. If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality (and this is important, as the court can functionally ignore provisions of the constitution under accepted judicial doctrine; being lashed to two-hundred-year-old thinking is not an inherent good and so plenty of escape hatches have been created over time). > But from what the constitution reads at this point a number of these measures are manifestly unconstitutional You speak imprecisely. You think (and maybe I do, too) that those measures are unconstitutional. Until they are ruled unconstitutional by a court (and the decision upheld on appeal, ruled on by the Supreme Court, etc. etc.), the most you can realistically say is that something might be unconstitutional. That's how checks and balances work--only the judiciary can say one way or the other, and that's by design.
- gdwatson 11y ago
 What you have described is the sort of government we have, but it's not one characterized by the rule of law -- or at least not characterized so thoroughly as you imply. If law can be retconned, then we are not ruled by law at all; we are ruled by the ones doing the retconning.
 - ethanbond 11y ago
 Law can be retconned. That's what a court decision is. Convictions or exonerations under a court decision cannot be retconned (except by pardon). Yes, we are ruled by the ones doing the retconning: that's what elections are for.
- jqm 11y ago
 I don't disagree that legally you are correct. But I think you might be missing my point. The constitution is on display in the nations capital. Copies hang on the walls of courtrooms around the country. It is taught to school children. It is (in theory) the supreme law of the land. If it were meant strictly for closed door interpretation by qualified individuals I doubt this would be the case. It would be like the bible during the dark ages. Only highly trained and qualified priests would be able to correctly understand it and pass their deciphering on to the masses. The point is that we live in a democracy. We are entitled to read the agreement we are supposed to be living under and to ascertain that it is (or isn't) being followed. In theory, (if anyone gave a shit), we can then elect people who will appoint judges who actually follow the document rather than weaseling around it for who knows what purpose while keeping the masses in the dark. Now, maybe the system is in need of overhaul for new times. But that is how it is supposed to work. Don't _ever_ feel you aren't qualified to ascertain an injustice or an infraction of the rules. And please don't suggest others don't have this right either. Down that path lies darkness.
 - gnaritas 11y ago
 It is a purposely vague document outlining the basic form of government leaving out all important detail and deferring that to said government and courts; it is by design intended to be interpreted by qualified individuals. The notion that it's some clear simple document anyone can read and properly understand is simply contrary to history and contrary to how law operates even back then. It was never the supreme law of the land so much as the supreme framework of the law to be later implemented by the land. > If it were all a matter of interpretation we wouldn't need an actual written constitution. That sentence quite literally makes no sense; all writing is a matter of interpretation, writing something down doesn't remove interpretation without great effort; in fact that's what legalese is, an attempt to remove all possible interpretation (which still fails continually; thus judges) and the constitution is not written in that manner because it's a general outline, not an attempt at really creating practical law.
 - jqm 11y ago
 What exactly is vague about this? "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." or this? "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills" or this? "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Now, I agree in portions such as this: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." That what comprises "public safety" is open to some degree of interpretation. But the document, as a whole is not that opaque. The intent is to be a transparent set of rules. Ones that you and I, as participants in a democracy can view and insist are followed. We can't just say "oh, judges know better" and leave it at that. That isn't a democracy, isn't representative and leads to a very bad place. We have to demand representation and a rule of law. We can't allow the law to be bent to the point it really isn't law anymore. We, as citizens, must be in control of our government. To do that, we must individually be able to read and judge the rules and ascertain if they are or are not being followed. And elect those who agree to uphold rather than subvert the process.
- agarden 11y ago
 > If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality What you are asserting is that we are not ruled by written law, but by a judiciary, who feels themselves free to invent "escape hatches" to avoid old commitments now deemed undesirable.
 - ethanbond 11y ago
 Yes, that is by design. Then the legislature can make a new law which can nullify a judiciary's decision. Or the executive can just stop arresting people for the crime and then the judiciary never gets a say. That's what checks and balances are.
 - agarden 11y ago
 If the old, nullified Constitutional provision said that dog-walking on Thursdays was illegal, what new law is the judiciary supposed to pass to make dog-walking illegal on Thursdays again? If the judiciary is free to impose whatever interpretation on whatever text they want, and then their interpretation is the real law, then there is no law the legislature can pass to change that. Of course everyone always has the possibility of fighting; civil war is always an option. But if the principle is that the judiciary gets to make law just howsoever it pleases, then one loses the ability to call the government out on anything. It just becomes "that's not what I want" versus "that's not what you want". Which is where we are at with this surveillance mess. Except that because we have a written Constitution with an explicit method for amendation, instead of an implicit right of amendment by Judiciary, we do have a basis for pointing out that the government is out of bounds and for demanding reform. Reject that and everything becomes legal and there is nothing you can do except complain that you don't like it.
 - ethanbond 11y ago
 The judiciary doesn't pass laws. The judiciary can choose to nullify a law by choosing "not guilty" for anyone charged under a law that's unjust. The executive can also just not arrest people seen walking their dogs on Thursdays. The legislature could just revoke the law that made it illegal to begin with, then the executive and judiciary have no right to arrest or convict under it anymore – even if the previous precedent was considered sound. This is how the government works. Yes, transition periods may be sloppy (people may be arrested for walking their dogs), but it will equalize. Legislature makes an unjust law The executive can choose to enforce or not to enforce If the executive enforces, the judiciary can choose not to convict Let's say for this specific scenario, assuming the surveillance isn't Constitutional (big assumption): 1: Executive begins doing something that's not Constitutional Judiciary chooses not to convict Law is nullified and executive will stop enforcing (what would be the point?) 2: Executive begins doing something that's not Constitutional Judiciary chooses to convict (the law is now officially Constitutional) Legislature disagrees with convictions and can pass specific laws outlawing the original executive actions, OR revoke the original law which allowed the unconstitutional interpretation This is all by design. This is how it's meant to work. Just because you don't think it's working in your favor does not mean it's broken.

by jqm 11y ago

eropple 11y ago

> If it were all a matter of interpretation we wouldn't need an actual written constitution. This is false, given that there is no settled jurisprudence until interpretation happens. If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality (and this is important, as the court can functionally ignore provisions of the constitution under accepted judicial doctrine; being lashed to two-hundred-year-old thinking is not an inherent good and so plenty of escape hatches have been created over time). > But from what the constitution reads at this point a number of these measures are manifestly unconstitutional You speak imprecisely. You think (and maybe I do, too) that those measures are unconstitutional. Until they are ruled unconstitutional by a court (and the decision upheld on appeal, ruled on by the Supreme Court, etc. etc.), the most you can realistically say is that something might be unconstitutional. That's how checks and balances work--only the judiciary can say one way or the other, and that's by design.

gdwatson 11y ago
What you have described is the sort of government we have, but it's not one characterized by the rule of law -- or at least not characterized so thoroughly as you imply. If law can be retconned, then we are not ruled by law at all; we are ruled by the ones doing the retconning.
- ethanbond 11y ago
  Law can be retconned. That's what a court decision is. Convictions or exonerations under a court decision cannot be retconned (except by pardon). Yes, we are ruled by the ones doing the retconning: that's what elections are for.
jqm 11y ago
I don't disagree that legally you are correct. But I think you might be missing my point. The constitution is on display in the nations capital. Copies hang on the walls of courtrooms around the country. It is taught to school children. It is (in theory) the supreme law of the land. If it were meant strictly for closed door interpretation by qualified individuals I doubt this would be the case. It would be like the bible during the dark ages. Only highly trained and qualified priests would be able to correctly understand it and pass their deciphering on to the masses. The point is that we live in a democracy. We are entitled to read the agreement we are supposed to be living under and to ascertain that it is (or isn't) being followed. In theory, (if anyone gave a shit), we can then elect people who will appoint judges who actually follow the document rather than weaseling around it for who knows what purpose while keeping the masses in the dark. Now, maybe the system is in need of overhaul for new times. But that is how it is supposed to work. Don't _ever_ feel you aren't qualified to ascertain an injustice or an infraction of the rules. And please don't suggest others don't have this right either. Down that path lies darkness.
- gnaritas 11y ago
  It is a purposely vague document outlining the basic form of government leaving out all important detail and deferring that to said government and courts; it is by design intended to be interpreted by qualified individuals. The notion that it's some clear simple document anyone can read and properly understand is simply contrary to history and contrary to how law operates even back then. It was never the supreme law of the land so much as the supreme framework of the law to be later implemented by the land. > If it were all a matter of interpretation we wouldn't need an actual written constitution. That sentence quite literally makes no sense; all writing is a matter of interpretation, writing something down doesn't remove interpretation without great effort; in fact that's what legalese is, an attempt to remove all possible interpretation (which still fails continually; thus judges) and the constitution is not written in that manner because it's a general outline, not an attempt at really creating practical law.
  - jqm 11y ago
    What exactly is vague about this? "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." or this? "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills" or this? "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Now, I agree in portions such as this: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." That what comprises "public safety" is open to some degree of interpretation. But the document, as a whole is not that opaque. The intent is to be a transparent set of rules. Ones that you and I, as participants in a democracy can view and insist are followed. We can't just say "oh, judges know better" and leave it at that. That isn't a democracy, isn't representative and leads to a very bad place. We have to demand representation and a rule of law. We can't allow the law to be bent to the point it really isn't law anymore. We, as citizens, must be in control of our government. To do that, we must individually be able to read and judge the rules and ascertain if they are or are not being followed. And elect those who agree to uphold rather than subvert the process.
agarden 11y ago
> If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality What you are asserting is that we are not ruled by written law, but by a judiciary, who feels themselves free to invent "escape hatches" to avoid old commitments now deemed undesirable.
- ethanbond 11y ago
 Yes, that is by design. Then the legislature can make a new law which can nullify a judiciary's decision. Or the executive can just stop arresting people for the crime and then the judiciary never gets a say. That's what checks and balances are.
 - agarden 11y ago
 If the old, nullified Constitutional provision said that dog-walking on Thursdays was illegal, what new law is the judiciary supposed to pass to make dog-walking illegal on Thursdays again? If the judiciary is free to impose whatever interpretation on whatever text they want, and then their interpretation is the real law, then there is no law the legislature can pass to change that. Of course everyone always has the possibility of fighting; civil war is always an option. But if the principle is that the judiciary gets to make law just howsoever it pleases, then one loses the ability to call the government out on anything. It just becomes "that's not what I want" versus "that's not what you want". Which is where we are at with this surveillance mess. Except that because we have a written Constitution with an explicit method for amendation, instead of an implicit right of amendment by Judiciary, we do have a basis for pointing out that the government is out of bounds and for demanding reform. Reject that and everything becomes legal and there is nothing you can do except complain that you don't like it.
 - ethanbond 11y ago
 The judiciary doesn't pass laws. The judiciary can choose to nullify a law by choosing "not guilty" for anyone charged under a law that's unjust. The executive can also just not arrest people seen walking their dogs on Thursdays. The legislature could just revoke the law that made it illegal to begin with, then the executive and judiciary have no right to arrest or convict under it anymore – even if the previous precedent was considered sound. This is how the government works. Yes, transition periods may be sloppy (people may be arrested for walking their dogs), but it will equalize. Legislature makes an unjust law The executive can choose to enforce or not to enforce If the executive enforces, the judiciary can choose not to convict Let's say for this specific scenario, assuming the surveillance isn't Constitutional (big assumption): 1: Executive begins doing something that's not Constitutional Judiciary chooses not to convict Law is nullified and executive will stop enforcing (what would be the point?) 2: Executive begins doing something that's not Constitutional Judiciary chooses to convict (the law is now officially Constitutional) Legislature disagrees with convictions and can pass specific laws outlawing the original executive actions, OR revoke the original law which allowed the unconstitutional interpretation This is all by design. This is how it's meant to work. Just because you don't think it's working in your favor does not mean it's broken.