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Australia does need constitutional human rights protections (currently we are in violation of a few international agreements, since we don't even have statutory

by cyphar 8y ago

Australia does need constitutional human rights protections (currently we are in violation of a few international agreements, since we don't even have statutory protections). But having a constitution that is not open to interpretation would be unprecedented and would be an awful decision. Without constitutional interpretation by the High Court, we wouldn't have the Mabo decision (an interpretation of the "on just terms" wording) nor would we have the right to freedom of political speech (an interpretation of the definition of representative government). And almost every country in the world has constitutions that are interpreted by their Supreme Courts -- not doing so would make the Constitution unusable as a supreme law of the land.

baybal2 8y ago
You substantiation for your position are weak. The degree that separates a constitutional state vs. inconstitutional ones is the firm definition of its legal state – a source of truth in the system, and not an amorphous interpretation existing in heads of demented supreme court justices.
- cyphar 8y ago
  Can you give an example of a constitutional state which does not have "amorphous interpretation existing in heads of demented supreme court justices"? None come to mind.
  - baybal2 8y ago
    I can give you both, an extreme example of a country whose judiciary champions the trollishly named concept of "legal realism" (better to be called legal surrealism,) and a number that continue to uphold the rationality that law was written to a rule to follow. The first one is USA, whose judiciary gladly swallowed the executive order 6102, and the entirety of nonsense surrounding domestic surveillance programs. One whose supreme court said that a man has "in fact gained" wealth from surrendering his gold for less than half of its price, and managed to validate FISA courts whose very existence goes prima fascie against the word of 10+ constitutional statutes. The second, the best example I know of is Pakistan, and to some extend India. British legal process, as well as German empire's one was textualist for quite long time. A very famous case of late British empire law, if not the most known one was when a man sentenced to hanging was pulled out of the noose in the very last moment, when a lawyer argued that "a sentence of hanging, gives no permission for murder." Even today, a supreme justice of Pakistan, a man known for the thunderous legal activism, is bound by hands and legs by the word of constitution, and hits the stone wall of SJC's opposition when his actions diverge even by a single letter from his formal legal mandate.
    - cyphar 8y ago
      > The second, the best example I know of is Pakistan, and to some extend India. I cannot speak about Pakistan, but I will comment on India. India has a concept of the "basic structure" of the constitution[1], and that no constitutional amendment may violate the fundamental rights that the constitution's "basic structure" grants. Now, it should be clear that politically this has been overturned a few times by different leaders, but conceptually the Indian constitution is very much interpretive -- and in fact the "basic structure" doctrine is a Supreme Court decision. So India most definitely does not fit the mould you describe. I couldn't find any information about literalism in Pakistan's constitution, so I really cannot comment on that. > when a lawyer argued that "a sentence of hanging, gives no permission for murder." This is not an example of interpretation -- in fact it's actually a wilful ignorance of the law. The sentence in British law has been (since its inception), "to be hung by the neck until dead". In any case, I have serious doubts that such a story is true (it's also clearly embellished). > The first one is USA [...] I disagree with domestic surveillance as well as many of things you mentioned, but you haven't given an example of how these things were allowed under constitutional interpretation. There in fact is a lot of evidence that shows that PRISM violated the constitutional rights of US citizens. I don't think there's any Supreme Court decisions about it though, so there isn't really a good argument in saying it's an interpretation problem if the constitution has never been interpreted for this particular case. [1]: https://en.wikipedia.org/wiki/Basic_structure_doctrine https://en.wikipedia.org/wiki/Basic_structure_doctrine
      - baybal2 8y ago
        Both FISA court and executive order 6102 went through the supreme court, don't feign ignorance. Googling both quickly reveals a number of supreme court cases. > concept of the "basic structure" of the constitution Which comes out of its plain text meaning, requiring no legal creativity to devise it. Were legal decisions of pre-independence India public. I would've put tons and tons examples for you. Out of all edge cases, you picked the biggest one. Please fully accept that constitution is the source of truth of the legal system. The very purpose, and the literal meaning of the word stand for constitutions being the mechanism establishing reason for any legal action.

by cyphar 8y ago

baybal2 8y ago

You substantiation for your position are weak. The degree that separates a constitutional state vs. inconstitutional ones is the firm definition of its legal state – a source of truth in the system, and not an amorphous interpretation existing in heads of demented supreme court justices.

cyphar 8y ago
Can you give an example of a constitutional state which does not have "amorphous interpretation existing in heads of demented supreme court justices"? None come to mind.
- baybal2 8y ago
  I can give you both, an extreme example of a country whose judiciary champions the trollishly named concept of "legal realism" (better to be called legal surrealism,) and a number that continue to uphold the rationality that law was written to a rule to follow. The first one is USA, whose judiciary gladly swallowed the executive order 6102, and the entirety of nonsense surrounding domestic surveillance programs. One whose supreme court said that a man has "in fact gained" wealth from surrendering his gold for less than half of its price, and managed to validate FISA courts whose very existence goes prima fascie against the word of 10+ constitutional statutes. The second, the best example I know of is Pakistan, and to some extend India. British legal process, as well as German empire's one was textualist for quite long time. A very famous case of late British empire law, if not the most known one was when a man sentenced to hanging was pulled out of the noose in the very last moment, when a lawyer argued that "a sentence of hanging, gives no permission for murder." Even today, a supreme justice of Pakistan, a man known for the thunderous legal activism, is bound by hands and legs by the word of constitution, and hits the stone wall of SJC's opposition when his actions diverge even by a single letter from his formal legal mandate.
  - cyphar 8y ago
    > The second, the best example I know of is Pakistan, and to some extend India. I cannot speak about Pakistan, but I will comment on India. India has a concept of the "basic structure" of the constitution[1], and that no constitutional amendment may violate the fundamental rights that the constitution's "basic structure" grants. Now, it should be clear that politically this has been overturned a few times by different leaders, but conceptually the Indian constitution is very much interpretive -- and in fact the "basic structure" doctrine is a Supreme Court decision. So India most definitely does not fit the mould you describe. I couldn't find any information about literalism in Pakistan's constitution, so I really cannot comment on that. > when a lawyer argued that "a sentence of hanging, gives no permission for murder." This is not an example of interpretation -- in fact it's actually a wilful ignorance of the law. The sentence in British law has been (since its inception), "to be hung by the neck until dead". In any case, I have serious doubts that such a story is true (it's also clearly embellished). > The first one is USA [...] I disagree with domestic surveillance as well as many of things you mentioned, but you haven't given an example of how these things were allowed under constitutional interpretation. There in fact is a lot of evidence that shows that PRISM violated the constitutional rights of US citizens. I don't think there's any Supreme Court decisions about it though, so there isn't really a good argument in saying it's an interpretation problem if the constitution has never been interpreted for this particular case. [1]: https://en.wikipedia.org/wiki/Basic_structure_doctrine https://en.wikipedia.org/wiki/Basic_structure_doctrine
    - baybal2 8y ago
      Both FISA court and executive order 6102 went through the supreme court, don't feign ignorance. Googling both quickly reveals a number of supreme court cases. > concept of the "basic structure" of the constitution Which comes out of its plain text meaning, requiring no legal creativity to devise it. Were legal decisions of pre-independence India public. I would've put tons and tons examples for you. Out of all edge cases, you picked the biggest one. Please fully accept that constitution is the source of truth of the legal system. The very purpose, and the literal meaning of the word stand for constitutions being the mechanism establishing reason for any legal action.