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Seven Supreme Court justices, products of the same era, training, experience, and institutions, cannot in all cases unanimously agree that a thing is (or is not

Seven Supreme Court justices, products of the same era, training, experience, and institutions, cannot in all cases unanimously agree that a thing is (or is not) constitutional. Let us pause to imagine for a moment the comity arrived at by "every citizen," having taught themselves law in accordance with their civic duty, in considering the same matters. How are we to imagine a thing to be (or not be) constitutional, in such a circumstance? If most citizens think a thing constitutional, does that make it so? Or have they merely 'ruled' that it was constitutional, in your view, should your own self-taught understanding persuade you differently? I agree in general that there is a civic duty to understand principles of government, to understand the nature and limits of law and justice, and to grasp (if not embrace) the fundamentals of ethical reasoning. However, in this instance what you seem really to be saying is that you hold your own judgement to be absolute and superior with regards to what is and isn't constitutional. I am not going to impugn the quality of your personal reasoning or education. The problem is that that just isn't how it works. None of the rest of us are interested in having that be how it works, and as a pragmatic matter it simply would not 'work' in any meaningful way. It would not result in a system in which most of us could agree and get along. The overwhelming majority view, from the time of the framing of the Constitution onwards, has been that Section 2 of Article 2 conveys the power of interpretation upon the federal judiciary in instances where the need for interpretation arises within the constraints imposed elsewhere upon their power. The other view is not a 'view' in the sense of a workable alternative. It is a stubborn naysaying, notionally on principle, that renders the entire system of law and governance unworkable. We don't want it.

mindslight 8y ago
> If most citizens think a thing constitutional, does that make it so? It means that most citizens think a thing constitutional. You seem to have an assumption that saying "X is constitutional" can only represent some universal fact rather than a personal opinion. > Or have they merely 'ruled' that it was constitutional I mean yes, this is exactly how Supreme Court decisions are talked about - whether the Court will rule certain way. A court can rule that pi equals 3 and lower courts will even have to follow that precedent in their own decisions, but it would obviously be foolish for anyone else to repeat this as factual. What you're doing is akin to equating legality and morality, a standard technique to quash dissent. Categorically ruling out that a code could be wrong prevents being able to critically discuss it. > It is a stubborn naysaying, notionally on principle, that renders the entire system of law and governance unworkable. Yes, it is an all-too-common refrain that dissent hinders effective governing.
- berberous 8y ago
  The text of the constitution at issue is your right to be free from "unreasonable searches". Your pi example ignores the fact that "unreasonable" is hard to define, and indeed, this case would not have reached the Supreme Court if there were easy answers. All we are saying is that in the United States, what the Supreme Court says on this issue _categorically_ makes it constitutional. That does not mean you cannot disagree with the policy, or advocate it be changed. For example, you could advocate that your state pass a law prohibiting the practice. Or you could advocate to amend the constitution. But saying it's unconstitutional just makes no sense, and would make our entire system unworkable. How do you feel about other issues? Is the right to an abortion (Roe v Wade) unconstitutional? Gay marriage? The Affordable Care Act? The right to tax income at all? There are groups that think all of those decisions were bad and unconstitutional -- but the Supreme Court has the final say. Amend the constitution, pass new laws, protest all you want, but saying any of these things are unconstitutional just because you disagree makes no sense.
  - mindslight 8y ago
    > All we are saying is that in the United States, what the Supreme Court says on this issue _categorically_ makes it constitutional This is a political assertion you are making. It prevents invoking the intent of the constitution without some contextual disclaimer, thus hindering critiques of whether the current government has run aground of its charter. > There are groups that think all of those decisions were bad and unconstitutional -- but the Supreme Court has the final say The final say over whether the government considers an action constitutional! While the Supreme Court interprets the law for the government, it does not have a monopoly on the definition of the word "constitutional". Please note that my original comment even used the term "anticonstitutional", because I did somewhat anticipate this authoritarian fallacy that courts define truth. Regardless of arguing the semantics of whether "constitutional" and "unconstitutional" are constrained to only referencing the legal scope, the argument I'm making is that the practice of stopping and harassing every traveler runs directly contrary to what the founders intended as well as the values our society purports to hold.
- escape_goat 8y ago
mindcrime 8y ago
The other view is not a 'view' in the sense of a workable alternative. It is a stubborn naysaying, notionally on principle, that renders the entire system of law and governance unworkable. There's a handful of us around who still care about principles.

mindslight 8y ago

> If most citizens think a thing constitutional, does that make it so? It means that most citizens think a thing constitutional. You seem to have an assumption that saying "X is constitutional" can only represent some universal fact rather than a personal opinion. > Or have they merely 'ruled' that it was constitutional I mean yes, this is exactly how Supreme Court decisions are talked about - whether the Court will rule certain way. A court can rule that pi equals 3 and lower courts will even have to follow that precedent in their own decisions, but it would obviously be foolish for anyone else to repeat this as factual. What you're doing is akin to equating legality and morality, a standard technique to quash dissent. Categorically ruling out that a code could be wrong prevents being able to critically discuss it. > It is a stubborn naysaying, notionally on principle, that renders the entire system of law and governance unworkable. Yes, it is an all-too-common refrain that dissent hinders effective governing.

berberous 8y ago
The text of the constitution at issue is your right to be free from "unreasonable searches". Your pi example ignores the fact that "unreasonable" is hard to define, and indeed, this case would not have reached the Supreme Court if there were easy answers. All we are saying is that in the United States, what the Supreme Court says on this issue _categorically_ makes it constitutional. That does not mean you cannot disagree with the policy, or advocate it be changed. For example, you could advocate that your state pass a law prohibiting the practice. Or you could advocate to amend the constitution. But saying it's unconstitutional just makes no sense, and would make our entire system unworkable. How do you feel about other issues? Is the right to an abortion (Roe v Wade) unconstitutional? Gay marriage? The Affordable Care Act? The right to tax income at all? There are groups that think all of those decisions were bad and unconstitutional -- but the Supreme Court has the final say. Amend the constitution, pass new laws, protest all you want, but saying any of these things are unconstitutional just because you disagree makes no sense.
- mindslight 8y ago
  > All we are saying is that in the United States, what the Supreme Court says on this issue _categorically_ makes it constitutional This is a political assertion you are making. It prevents invoking the intent of the constitution without some contextual disclaimer, thus hindering critiques of whether the current government has run aground of its charter. > There are groups that think all of those decisions were bad and unconstitutional -- but the Supreme Court has the final say The final say over whether the government considers an action constitutional! While the Supreme Court interprets the law for the government, it does not have a monopoly on the definition of the word "constitutional". Please note that my original comment even used the term "anticonstitutional", because I did somewhat anticipate this authoritarian fallacy that courts define truth. Regardless of arguing the semantics of whether "constitutional" and "unconstitutional" are constrained to only referencing the legal scope, the argument I'm making is that the practice of stopping and harassing every traveler runs directly contrary to what the founders intended as well as the values our society purports to hold.
escape_goat 8y ago

mindcrime 8y ago

The other view is not a 'view' in the sense of a workable alternative. It is a stubborn naysaying, notionally on principle, that renders the entire system of law and governance unworkable. There's a handful of us around who still care about principles.