Formal or informal Constitution

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Formal or informal Constitution

Unread postby Strategist » Wed Jan 23, 2013 11:15 pm

Outside the United States it's a different matter, but I'm curious why people dismiss so easily the argument that a government should not break its constitution on principle. A few arguments for it:

-A government's legal power to govern comes from the Constitution (if you say it comes from the people then a government is legally obliged to do whatever the people want, which most don't believe). If they break it, then there is a contradiction- "You must obey us because of the Constitution, but we're going to order you to do this despite the Constitution."
-The rule of law is what seperates people in modern Western Democracies from serfs in terms of social status (note I didn't say economic status). If we must totally submit to a government, in the end we are no better than vassals of a distant feudal lord.
-Any government which breaks its Constitution too much and gets away with it ends up with an 'informal Constitution'. In some cases this is not such a bad thing, but it makes it much easier for a would-be dictator as constitutional safeguards no longer exist for practical purposes. Obama has gotten away with killing American citizens (not cleanly but in the end he has), starting wars without Congress or the Senate's approval, and as is practically tradition nowadays passing unconstitutional laws.

As for the Supreme Court, they have clearly made mistakes before and have made a mistake with the Second Amendment (partly because plenty of judges over the years don't care about the Constitution and just do what's pragmatic, never mind their oath).
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Re: Gun Control

Unread postby laojim » Fri Jan 25, 2013 6:29 pm

Strategist wrote:As for the Supreme Court, they have clearly made mistakes before and have made a mistake with the Second Amendment (partly because plenty of judges over the years don't care about the Constitution and just do what's pragmatic, never mind their oath).


Nonsense. Just because some judges ruled against something you believe in does not mean they don't care about the constitution. It just means that either they don't agree with you on how it should be read or, more likely, they have before them someone who made a case that was persuasive. The error that most people make in discussing the constitution is that it is not, as a matter of fact, the only source of American law. American law (perhaps ignoring the case of Louisiana) is in large measure derived from English common law. This enshrines numerous principles or legal arguments that were not put into the constitution. For example, there is no common low requirement for a citizen to assist policemen with their inquiries. If I we pass a law demanding that people be required to help them one might challenge such a law on the grounds of the common law and in America that sort of conflict can be difficult to resolve, but these prinicples of common low may well enter into the decisions of the supreme court.

There is also an entire field of the law that entirely free of constitutional or statutory law and that is what is known as tort. There is, for example, the notion of negligence which does not appear in the constitution but is quite commonly litigated. There has arisen a complex set of ideas about various kinds of negligence that may or may not be considered as the grounds for legal sanctions. None of this is in the constitution but most of it is honored in common law.

The gun lobby wants to use the law to allow anyone to possess any firearm and they ultimately base this on an amendment to the constitution but the few words they are hanging their hats on are, at very best, somewhat ambiguous. For the moment they revel in what seems to be a decision in their favor, but they are depending on a partisan court that, when the makeup changes, could easily desert them and, if history is any guide, will do so. People who are not enthusiastic about the multiplication of lethal weapons and their use by the deranged or angry and we want some brakes on this endless piling up of firepower for no rational purpose.
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Re: Gun Control

Unread postby Strategist » Sat Jan 26, 2013 12:45 am

A large number of judges have believed in the theory of the 'living constitution', a clear nonsense (if you challenge this point, I'll prove it). The court has overturned it's previous decisions many times. Finally, many standing Court decisions are so plainly ridicolous either based on original intent or a literal reading of the words as to discredit the Court permanently.

Although the Founding Fathers intended to preserve English common law (a mistake, although a difficult one to see without hindsight advantage), they had no intention of having it override the Constitution or they would have said so. It is also highly unlikely, given that in English tradition Parliament could override the common law (judges could at most interpret acts in line with common law principles unless there was a clear contradiction in which case the Act prevailed), that they intended for it to override Congress.

In your example, assuming it was within the power of the relevant body (probably the States), the Supreme Court would have no right to strike it down. They clearly don't have such a power taking the Constitution literally, nor do they have such a power judging by it's intent. Any such power would have to come from a pragmatic interpretation- i.e utter bull.
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Re: Gun Control

Unread postby laojim » Sat Jan 26, 2013 7:18 am

Strategist wrote:. The court has overturned it's previous decisions many times. Finally, many standing Court decisions are so plainly ridicolous either based on original intent or a literal reading of the words as to discredit the Court permanently.A large number of judges have believed in the theory of the 'living constitution', a clear nonsense (if you challenge this point, I'll prove it)....In your example, assuming it was within the power of the relevant body (probably the States), the Supreme Court would have no right to strike it down. They clearly don't have such a power taking the Constitution literally, nor do they have such a power judging by it's intent. Any such power would have to come from a pragmatic interpretation- i.e utter bull.


English common law has and continues to be used in American courts for a variety of things. Laterly a number of things have cropped up in which statutes conflict with common law in matters of privacy and such things. For the term common law you can substitue some other loquation such as, "IOt has always been believed that ..." a man's home is safe from prying eyes or whatever. An example is in school law in which the teacher of any class is, or the school in general is legally regarded as the parent of the children in his or her care. I don't believe this is stated in any statute but it is firmly entrenched in case law and it is endless fun to tell this to older children who can have endless fun waxing indignant at the very idea.

What gets interesting is that this sort of thing depends on local sensibilities. For example, in America we might buy text books for the children in public schools while we do not but those same texts for children in church schools. When I worked in Victoria, in Australia, they used the same raw material to argue that it was a violation of the separation of church and state if we bought texts for the public schools and refused to buy them for the church schools because we were discriminating on the basis of religion. In both the US and Aus. solemn judges have urled in these tow different ways on the same grounds.

Much the same can be said of countless issues. Had some states paid more attention to equal and less attention to separaation we might still have separate but equal, which is to say segregated, schools today, but it is easily demonstrated that ths schools were in no sense equal although strictly segregated. Separate but eaual rhetoric was resusitatted by proponents of gender segregated schools and advocaates of so called magnet schools.

You are correct that laws and precedents are often overturned for one reason or another. I am not impressed with the notion of original intent simply because it is impossible to guage that except as a kind of hermenutics. If we could determine that the writers of the document meant to protect their riches and property, including the slaves, from the rabble we might look at some of these matters differently. And that is precisely what they often seem to have been doing. Just because the wrote otherwise in fine words is not convincing. We don't need slave owners telling us about equality and such facts make their pronouncements on other matters suspect.

Anyhow, enough of this. I'm going to bed.
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Re: Gun Control

Unread postby Strategist » Sat Jan 26, 2013 8:29 am

My actual stance, to make it clear, is that there is a case for originalism and a case for literalism- however no other theory of constitutional interpretation is credible. I thought I would make that clear so you could see what I'm arguing for.

Just because something is the way things are done does not mean that it is legal, nor that it is justified. The Supreme Court has gotten it wrong many times- the fact that they have overturned their own decisions is the final proof of that.

The principles of common law you discuss are far more vague than original intent- for practical purposes, judges are making things up and calling them law. Since you use the 'original intent leads to disasterous conclusions' argument, I'm going to assume that you endorse this practice. However, this has serious problems. To list:

-For practical purposes, the state does not have a Constitutition. Thus, any safeguards in the Constitution are illusionary, as judges can repeal them.
-The government derives its authority from the Constitution. Hence, the government is being hypocritical by claiming authority from a set of rules they do not obey.
-The rule of law no longer exists in the state. Therefore, the idea of anybody in the state being anything resembling a free citizen is illusionary- if the government and the courts agree they can force people to do anything whatsoever, making them as much slaves as people in legal slavery.

Just because the Founding Fathers wanted something to be the case does not mean it was intented to be mandated by the Constitution. Nothing in the Constitution technically mandated racial discrimination when it was created, for example- therefore if you had asked any of the Founding Fathers none of them would have disputed the constitutionality (assuming the states did it) of anti-discrimination laws.

Figuring out the intent of the Founding Fathers is very difficult, especially as in some cases they disagree. Therein lies the case for a completely literal interpretation, which is thus indisputably racism and bigotry-free. By using the definitions of words at the time, it is possible to be precise enough as to create almost no ambiguity. What objections would you have to such an interpretation?

I don't think that much of the Founding Fathers either- the claim to authority is not their claim, but the Constitution's claim. The root of this claim is that any measure which defies the Constitution is illegal, and that a government passing an illegal law clearly has as much right to enforce it as a vigilante does.
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Re: Gun Control

Unread postby laojim » Sat Jan 26, 2013 8:12 pm

Strategist wrote:My actual stance, to make it clear, is that there is a case for originalism and a case for literalism- however no other theory of constitutional interpretation is credible......


One thinks of Burke arguing that the king had no right to hold the endless generations in thrall to his will simply because he had once been the king and one thinks, therefore, that the writers of the constitution have no right to hold the endless generations in thrall to some supposed intent or some literal interpretation of some words. As Burke argued in the past, people here and now have the right to arrange their affairs as they please and can, if they want, tell the founding fathers to go f___ themselves.
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Re: Gun Control

Unread postby Strategist » Sun Jan 27, 2013 12:32 am

The Founding Fathers of every democratic constitution provided a mechanism for amendment to it, and furthermore only restricted the governments on limited matters. Given that, it is unfair to claim that they are 'holding future generations in thrall'.

If you have no Constitution for a state, then what protections do you have for any rights whatsoever? 'Informal constitutions' change over time, and change considerably- what's to stop them changing into tyrannies?
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Re: Gun Control

Unread postby laojim » Sun Jan 27, 2013 6:35 am

Strategist wrote:The Founding Fathers of every democratic constitution provided a mechanism for amendment to it, and furthermore only restricted the governments on limited matters. Given that, it is unfair to claim that they are 'holding future generations in thrall'.

If you have no Constitution for a state, then what protections do you have for any rights whatsoever? 'Informal constitutions' change over time, and change considerably- what's to stop them changing into tyrannies?


The British all believe in their constitution but they can't show it to you because it was never written. They refer to something like a social compact.

Certainly there is a method of amendment, but if you argue that one is bound by the literal meaning of the words on parchment or the supposed intent of the writers then you are demanding that a particular interpretation be binding on the future generations and that those generations must agree to the supposed intent unless they want to go to the trouble of amendment. It is the same sort of thinking but a form of thinking long thought to be rejected by the American constitutional scholars. They say the the will of a long dead king is not binding but they argue that the will of a long dead constitution writer, a will that is inherently unknowable, must be binding on future generations.
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Re: Gun Control

Unread postby Strategist » Sun Jan 27, 2013 10:42 am

Not all Brits believe in the 'informal Constitution'- don't put words into their mouth. To the extent it is a social compact, it is clearly one where people are nowhere near equal in terms of influence on its content (if you challenge this point, I can prove it) and therefore not a democratic one.

More importantly, it provides no real safeguard as it can easily change. As of right now, the abolition of elections would provoke such outrage as to probably trigger a military revolt even if the government wasn't dismissed outright. Once, a Catholic (or even a crypto-Catholic) coming to power as King of England would trigger such outrage as to trigger a revolt and the destruction of the kingdom. Once, Britain being a Protestant Christian State was considered so basic as to be unchallengable. Now, Britain is Anglican in name only.

Actually, where did American constitutional writers argue against the will of a 'long dead king'? And more importantly, if not the Constitution then whom or what is sovereign?

My guess is that you'd argue for Populism- the view that, ultimately, The People are sovereign. In practice, this is not the case in any nation that has ever existed due to the creation of natural hiearchies (except perhaps for very brief ones)- so we can conclude it is an exceedingly difficult goal. It also is a vague idea because you have to define The People- do you include women? The insane? Children- and if not, under what age?

Another problem with Populism is that it can divide into three potential categories- saying that the entire world is one community, saying that the people can define community lines however they like, or saying that communities are made on national boundaries. If your view is the first you presumably advocate for world government- this is the most coherent, but I'm guessing based on probabilities it is not your view. If the second, then the people have abdicated some of their power (the whole to compel the parts)- what gives them the right when they can't abdicate other powers? If the third, how you justify these highly arbitrary lines?

Most importantly of all, however, assuming your view is Populist then how do you demonstrate Populism? What moral argument leads to the conclusion that some of the people can compel others? (I'm not going to articulate my own theory of sovereignty unless asked, but I will note that I have one ready if you wish to ask about it.)
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Re: Gun Control

Unread postby Dong Zhou » Sun Jan 27, 2013 12:55 pm

Strategist wrote:If you have no Constitution for a state, then what protections do you have for any rights whatsoever? 'Informal constitutions' change over time, and change considerably- what's to stop them changing into tyrannies?


What's to stop the US plunging into tyrant land if American plunges into deep troubles? The Constitution doesn't seem to have stopped certain incidents in my life time so not sure why it would do any better in a case where tyranny was an option.

I mean if Greece, to use a potential example, loses democracy (again since the EU forced it's own choice of caretaker government), I don't think a written constitution will have been the way it could have been saved.

Strategist wrote:Not all Brits believe in the 'informal Constitution'- don't put words into their mouth. To the extent it is a social compact, it is clearly one where people are nowhere near equal in terms of influence on its content (if you challenge this point, I can prove it) and therefore not a democratic one.


I don't recall wide spread support when Brown wished to make it a formal, written constitution.

I wasn't aware today's Americans, bar the judges, had any say on the Constitution?

Strategist wrote:More importantly, it provides no real safeguard as it can easily change. As of right now, the abolition of elections would provoke such outrage as to probably trigger a military revolt even if the government wasn't dismissed outright. Once, a Catholic (or even a crypto-Catholic) coming to power as King of England would trigger such outrage as to trigger a revolt and the destruction of the kingdom. Once, Britain being a Protestant Christian State was considered so basic as to be unchallengable. Now, Britain is Anglican in name only.


Times and attitudes change, some tradition will keep, others will be altered and some will be got rid of. I'm not going to argue all the changes have been good but I see no reason to keep laws from William the Conqueror, Elizabeth I, Henry IV or whatever period if the laws seem bad or out of date. I'm not sure a written constitution would have prevented Britain from coming a secular society and it shouldn't prevent discussions about the future of church and state.

I see attitudes, rather then who has a piece of paper and who doesn't, as the big thing. It would be thinkable, at this time, for a President/PM to go tyrant, it would be unthinkable for a commander to turn his army against his government, the people wouldn't accept it. The danger is if that attitude changes, if the system and the country comes so damaged that people lose faith in democracy, that they don't care if a tyrant comes in and may even welcome it. At that point, I don't having a written constitution being much of a problem
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