Formal or informal Constitution

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Re: Gun Control

Unread postby Strategist » Mon Jan 28, 2013 12:33 am

I should also ressurect the argument I made earlier that people haven't properly countered that in a country with a formal constitution, the government derives its authority to govern from the Constitution. Therefore, for the government to pass an unconstitutional measure is hypocritical and makes it no better than a vigilante.

Also raising an additional argument- informal constitutions are far more vague than formal constitutions. Therefore, it is far harder to enforce the clauses of informal constitutions. It is also far harder to justify acting against the government in their defence allowing for creeping breaches to occur more easily.

1:
For practical purposes, the U.S constitution was subverted a long time ago and no longer exists as a preventative force. If it were actually kept, judges would strike down unconstitutional measures based on what was actually unconstitutional- hence rights would be safe.

What you need is the combination of three things- a written constitution, judges who interpret the constitution properly, and a military and/or civil service that will side with the judges should it come down to it. Most modern countries have one and close enough to three to work well enough. Two is the problem.

2:
A lot more Brits would gripe about the content of the 'informal Constitution', implying they don't agree with it as it stands, then would support a formal Constititution. But at the very least one Brit (and probably a significant minority) support a formal Constitution. It's never a good idea to generalise about a whole national grouping (to the extent such groupings are even valid)- better to speak of majorities, at least then you're accurate.

I don't actually approve of Constitutions as social compacts- I was refuting the idea.

3:
Your arguments seem to contradict each other- you claim Britain would have become secular even with a written Constitution, and yet you attack the idea of a written Constitution for keeping ideas from the past. Is a Constitution impotent or problematic in your view? You can't have it both ways.

A degree of limited compromise is probably best. If amendments to the Constitution require a supermajority of the people, then such changes will take considerable time but will eventually occur. More importantly, it will genuinely be the people who decide how the Constitution changes rather than the elites of the state.

If all three elements that I discussed existed, Britain could have been prevented from going secular. It wouldn't have stopped the rise of secularism amongst the people, but until an amendment occured judges would have the government from acting in a secular manner. Still, this isn't that relevant as we were discussing following the United States constitution properly rather than a hypothetical British Constitution.

Times change- as I said, it was once unthinkable for a Catholic to take power. It was once unthinkable that real power would be snatched from the Monarch and given to Parliament. To protect an informal Constitution is harder than protecting a formal Constitution, doubly so when there is a formal Constitution that is ignored in practice. Since the United States has a formal Constitution that cannot be formally abolished, that is what we should be discussing.

Cultural trends in the United States prove that nowadays. Because the precedent has already been set for ignoring the Constitution, trying to argue something as unconstitutional doesn't work. It was once said of English equity law that it 'varies with the length of the Lord Chancellor's foot'. It is definitely fair to say of modern American consitutitonal law that it 'varies with the length of the Chief Justice's foot'.
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Re: Gun Control

Unread postby laojim » Mon Jan 28, 2013 7:35 am

Strategist wrote:....Because the precedent has already been set for ignoring the Constitution, trying to argue something as unconstitutional doesn't work. It was once said of English equity law that it 'varies with the length of the Lord Chancellor's foot'. It is definitely fair to say of modern American consitutitonal law that it 'varies with the length of the Chief Justice's foot'.


This is the usual claim made by the ultra right wing when they want to justify segregation, laws against abortion, civil liberties and what have you. The argument is that the constistution must be interpreted as they say so and that any variation from that prescribed interpretation is an abandonment of the document. They say this about individuals such as Mr. Obama who, they cry, knows nothing about the constitution despite his juris doctorate in constitutional law from Harvard, generally thought to be a fairly reputable organization with deiplomas that are widely respected. My guess is that he probably know quite a lot about the law and the constitution which suggests that people who denigrate his interpretation are probably not motivated by a simple thirst for knowlege.

As a practical matter laws are passed every day which are ultimatly found unconstitutional. We have had quite a lot of that in our state with the Republicans passing law after law which is struck down in the courts.

What all this has to do with the chif justice's shoe size I have no idea.

As for the British constitution, that is a long standing belief cited time and again in the UK. It may or may not be enjoying much currency these days, but the notion survives.
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Re: Gun Control

Unread postby Strategist » Mon Jan 28, 2013 8:20 am

I should remind you that my argument is that the United States has already crossed the threshold, and thus its constitution has ceased to be a protection against tyranny. Although few admit it, it is now stuck with an 'informal Constitution' very different from the actual text. Unconstitutional laws being passed then struck down after a short time don't destroy the structure of society- long-lasting ones do.

Your reference to the ultra-right wing is an ad hominem argument, so I'm ignoring it. Just because Hitler says something doesn't make it false, let alone a mere disreputable person.

Modern day constitutional law, at least in the United States, is a nonsense with no relation to the actual constitution. It is limited by the fact that too many lawyers assume Supreme Court decisions to be valid no matter what, particularly when still students. The idea that the Supreme Court could have started making wrong decisions from the start of U.S history is inconcievable to them, so they refuse to accept it.

Of the few who do it accept it, many say 'Screw the constitution'. The remainder are unpopular enough not to be appointed to the Supreme Court as they don't accept the fictions of the day, perpetuating a cycle as lower judges are bound by the Supreme Court, judicial decisions determine what are taught in law schools (which people accept by default due to not wanting to dissent against so many authority figures, however unreasonable they're being), etc etc.

The English equity law saying was a metaphor. It was made in the seventeenth century by an English jurist, but to use modern ideas to clarify the truth behind it- ANY decision left to human discretion will be affected by bias, and the more discretion the more bias will occur. To the shock of both lawyers and judges, a scientific study showed that the severity of a prisoner's sentence had a correlation with the time of the day (and given that it shocked both, there probably wasn't a good explanation), for example. Other studies show that the human fairness instinct is the easiest instinct to subvert. The solution to the problem is hard rules with far less discretion for human beings than modern systems have in practice.
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Re: Gun Control

Unread postby Dong Zhou » Mon Jan 28, 2013 12:33 pm

Strategist wrote:I should also ressurect the argument I made earlier that people haven't properly countered that in a country with a formal constitution, the government derives its authority to govern from the Constitution. Therefore, for the government to pass an unconstitutional measure is hypocritical and makes it no better than a vigilante.

Also raising an additional argument- informal constitutions are far more vague than formal constitutions. Therefore, it is far harder to enforce the clauses of informal constitutions. It is also far harder to justify acting against the government in their defence allowing for creeping breaches to occur more easily.


Sure it is hypocritical. Does it happen? Yes.

3:
Your arguments seem to contradict each other- you claim Britain would have become secular even with a written Constitution, and yet you attack the idea of a written Constitution for keeping ideas from the past. Is a Constitution impotent or problematic in your view? You can't have it both ways.


You asked how tyranny can be prevented without a constitution, think it is fair to go "other countries have managed it." However sure, I understand you wish to focus only on your own Constitution so I'll limit myself to answering this question.

Answer: Both. If America was in such dire straights as Greece could yet be or the most obvious example of 1930's Germany, then I believe a written Constitution will be as much use as a chocolate teapot.

I'll acknowledge that a written Constitution might have delayed changing certain religious based laws for awhile even with society being more secular for a variety of reasons. As it stands, MP's have quickly changed laws blocking an elected member in recent years so the likes of Byrant (I think) has been able to serve. If we were bound by oppressive laws that can't be changed quickly, there would of have been a major issue. I don't think a Constitution would have prevented Britain going secularist, merely blocked reforms needed to reflect it.

The problem I find is that if a President suggests something that a faction doesn't like, whether it is a good idea or not, like heath-care or whatever, the Constitution becomes a barrier to reform. Even if it has nothing to do with the Constitution, get the idea that it is anti to the public and it becomes more difficult for reform to pass.
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Re: Gun Control

Unread postby Sun Fin » Mon Jan 28, 2013 12:37 pm

I don't object to a constitution in principle but I often find that American's obsession with it is unhealthy. I've had many debates with Americans when their only argument is: 'cos it says so in the constitution'. I know there is an irony here in that I have been accused (rightly so at times) of doing the same with the Bible but the difference is I believe the Bible is a divine document directly inspired by a perfect being, what’s your excuse for giving your constitution the same level of authority?
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Re: Gun Control

Unread postby laojim » Mon Jan 28, 2013 8:50 pm

Strategist wrote:I should remind you that my argument is that the United States has already crossed the threshold, and thus its constitution has ceased to be a protection against tyranny. Although few admit it, it is now stuck with an 'informal Constitution' very different from the actual text. Unconstitutional laws being passed then struck down after a short time don't destroy the structure of society- long-lasting ones do.

Your reference to the ultra-right wing is an ad hominem argument, so I'm ignoring it. Just because Hitler ...


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Lao Jim's law: The first person to cite Hitler loses.

Recall, also, that the function of the constitution is not to regulate society, but to structure governing. There is no reason to connect "destroy[ing] the structure of society," to anything in the constitution. I think this is a common point of confusion in this country where it has been shown that children confuse the president and God.
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Re: Gun Control

Unread postby laojim » Mon Jan 28, 2013 8:58 pm

Sun Fin wrote:I don't object to a constitution in principle but I often find that American's obsession with it is unhealthy. I've had many debates with Americans when their only argument is: 'cos it says so in the constitution'. I know there is an irony here in that I have been accused (rightly so at times) of doing the same with the Bible but the difference is I believe the Bible is a divine document directly inspired by a perfect being, what’s your excuse for giving your constitution the same level of authority?


Give that man a Kewpie doll for getting it right. It is a form of idolatry, I think. It is a constant source of interest simply because there are countless things that are not mentioned in the constitution but people assume that it must be relevant. You can overturn a law by showing that it is contrary to the constitution and so one tries to guess before passing any law how it might be interpreted as contrary and such a consideration can be brought to bear for anything from immigration reform to parking regulations. It is, in other words, somewhat inevitable and it is precisely why common law is so important these days.
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Re: Gun Control

Unread postby Strategist » Tue Jan 29, 2013 11:57 am

I'm actually the son of a person born and raised in Singapore and a person born and raised in Australia. Of my grandparents one considers themselves English, one Australian, and two Singaporean Chinese. I was born and raised in Australia. Because I disagree with the idea of nationalities as objective entities in general, I refuse to consider myself Australian.

However, I take an interest in the American Constitution as it the most stark and obvious case of a Constitution being undermined through judicial rulings (as opposed to cases such as the Soviet Union, which are the same but worse).

DZ:
1- What we are contesting is the moral rightness or otherwise of it, not the probability of it happening.

In your view, what makes a government have moral rights of any sort a vigilante doesn't anyway? I would be curious to hear your views.

2- My point is that you cannot prevent "drift" without a written constitution. By "drift" I refer to "de facto change to a country's informal Constitution over time". If judges ignore the Constitution, "drift" is also unavoidable.

In countries with Drift, said Drift will generally occur (looking at it from a long-term perspective) due to cultural factors, being influenced particularly by those that create the moral structure that influences judges. As nobody can control said Drift, there is nothing to prevent it becoming tyrannical.

Over time, some trends do tend towards tyranny. Although I doubt any country considered clearly part of the West will abolish elections within the next century, or even two centuries, traditionally accepted rights are being sucessfully abolished. In the United States, Presidents have slowly gained more and more power over time- including, lately, the power to start wars without Congressional authorisation and call them wars and the power to have American citizens assasinated. Guantanamo Bay is an additional worrying sign.

If this trend continues, there is a non-negligible danger of tyranny.

As I mentioned earlier, you need two key elements. 1930s Germany lacked a military that was loyal to Democracy. The modern United States lacks judges who will rule based on what the Constitution actually says, rather than what they want it to say.

If by "secularist", you are taking about the way ordinary people behave, I agree with you about Britain. If you're talking about the way the government behaves, I think a well-written Constitution (granted a military that will not let the government get away with a breach or overthrow, and judges ruling on it properly- if you want I can explain more about how to get judges of such a nature as far as I know) could constrain it considerably even if it wants to act in a secularist manner. I only thought of this whilst typing, but in some places an American-like respect for the Constitution could also obstruct social change.

A properly-interpreted and thus narrowly-interpreted Constitution would actually prevent ideas being idiotically shot down for Constitutional reasons (assuming the Constitution did not actually prevent them), as people would have more faith in judges and would be aware that the interpretation of the Constitution was quite narrow (some rulings become famous, and there's a good chance a 'narrow interpretation' case on a controversial issue would). If intelligently written, even things like Obama's health care reform wouldn't be a problem. For example, if it followed the State's Rights interpretation the States could make such reforms even if the Federal Government could not.

Sun Fin:
Those Americans probably have a very different view of the Constitution than I do. As far as I can tell, the States's Rights Interpretation is closest to what the Founding Fathers intended and the literal wording (with varying degrees depending on whether you go by literal intent or not), mitigated only by the impact of the post-Lincoln amendments.

I do not consider the Constitution the final arbiter of what is moral- I consider it the final arbiter of what is legal. In addition, I consider it morally unacceptable for a government to pass a clearly unconstitutional law, NO MATTER WHAT. If you request, I can clarify my reasons for this even further.

You could potentially contest me on the degree to which what is legal and what is moral coincide for a government, or if the Constitution is the final arbiter of what is legal, or both. To accuse me of calling the Constitution my Bible is foolishness.

laojim:
That's comparing an opponent to Hitler, not simply referring to Hitler in an argument.

What the 'Structure of society' consists of is a definitional question. As a person with far more interest in politics than in popular culture, I tend to look at it as part of society. Given that, I think we should drop the point.

A Christian can respect the Bible without considering it to be God. For the rest of my refutation, see Sun Fin.
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Re: Gun Control

Unread postby Dong Zhou » Tue Jan 29, 2013 12:28 pm

1) A government is elected, a vigilante isn't. Assuming they are free and fair elections.

I'm not saying governments throwing hissy fits over prisoner voting is right or ignoring things like "no torture" is legitimate. Just to clarify.

2) If America was humiliated and in dire straits, I'm not at all convinced that the constitution will save it from tyranny. Or that it stops things drifting, the America is now is very different to the newly independent America that made the Constitution. Or at least, I hope it is. As you say, America is not sticking strictly to the constitution and balance of local/federal power has changed.

As I said, I think a Constitution would delay changes within government itself for awhile, I don't deny it could be a roadblock to reform.

A properly-interpreted and thus narrowly-interpreted Constitution would actually prevent ideas being idiotically shot down for Constitutional reasons (assuming the Constitution did not actually prevent them), as people would have more faith in judges and would be aware that the interpretation of the Constitution was quite narrow (some rulings become famous, and there's a good chance a 'narrow interpretation' case on a controversial issue would).


I suspect the writers of the Human Rights act though this would happen, that it would be narrow and judges would be trusted. If Europe's laws and America's constitution is constantly being interpreted in ways perhaps not originally meant, what would stop a British constitution from being expanded on by British judges?
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Re: Gun Control

Unread postby laojim » Tue Jan 29, 2013 7:29 pm

Strategist wrote:.....
2- My point is that you cannot prevent "drift" without a written constitution. By "drift" I refer to "de facto change to a country's informal Constitution over time". If judges ignore the Constitution, "drift" is also unavoidable.
...


You cannot prevent drift in any way. A written document may become meaningless, as the Magan Carta is in the US. A written constitution may become irrelevant. It could be that in the next century monarchy will be all the rage and the constitution will be an interesting historical document written by well intentioned silly people. You can, for example, ask your congressman to introduce a bill making you a pirate, as provided for in the constitution, but the drift is such that they are not likely to issue letters of marquis to you or anyone else. Things change and a written constitution to which one is required to follow despite the changes in times is little different from the edict of a long dead monarch. Every society has the right to organize its own affairs as they see fit. In other words, Bourke is likely to be unimpressed by the dead hand of a constitution.
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