Catholic Charities Mixes Politics with Community Services

[MrFun]

No, to Imran, laws he agrees with are immutable, and laws he disagrees with can be changed anytime.

He's got a very consistent legal philosophy.

Um, yeah - what do lawyers know about law?

[Imran Siddiqui]

I take it Ben is not a constitutional scholar?

[Zevico]

I'm questioning my commitment to sparkle motion here, but anyway:
--
There's been some discussion about the US Constitution here. For Americans constitutional and political issues are often mixed together, partly because the USSC is, in one sense, a politicised institution.

By this I mean that it has often made rulings consistent with its own political principles rather than by reference to the basic principles of statutory construction. As a matter of political science, we may observe that this has led to judicial legislation of sorts whose existence has been tolerated by the Congress because the alternative to the same is removing judges from the federal bench.

From a legal perspective, the "doctrine" of progressive interpretation of a statute is really just hogwash. Statutes have an ascertainable possible meaning or, in ambigous cases, possible meanings, which are ultimately founded in the legal, political and social context in which they were enacted. Otherwise they simply have no meaning at all. Laying claim to a living statute or a living constitution is merely to substitute one's own political views for those of the legislators or electors who enacted the statute, simply because the meaning of the law changes (in effect) according to the political preferences of the judiciary.

Returning again to a political perspective, however, we may observe that there is at least a coherent argument in favour of the view that judges should refuse to obey laws with which they disagree. We may observe that their refusal to do so is often couched in progressivist interpretive doctrine. This is unfortunate, as this basic issue should not couched in hogwash. Ultimately the debate here isn't about hogwash but about (i) civil disobedience and (ii) judicial encroachment on the powers of the legislative branch of government.

[Berzerker]

According to Imran, new laws > old laws, so it's possible to make a change like this without a constitutional amendment.

the 14th Amendment takes precidence over the original text of the Constitution that takes precedences over the common law.

Imran's right

and Ben's grasping at air

[Zevico]

Trouble with Imran's argument is more about the meaning and effect of the 14th amendment. Some assert that it was judicially "amended" or "reinterpreted" to (in effect) become a law forbidding things that judges just plain don't like. In other words, some assert that it didn't originally possess, and nor was it ever intended to have, the effect that judges today say it does have. I wouldn't be surprised if this were true, but without having a knowledge of american con law I can't say that it is. I can only say that it is, at the least, always interesting to read Antonin Scalia's opinions on subjects such as these. And his basic explanation of what judges do is the clearest and most convincing I've ever read.

More broadly, Ben does make one point about written, binding constitutions: they don't magically change, expand or retract in meaning unless expressly amended by the people. Trying to figure out what people meant by certain words and coming up with two possible answers is different from throwing out those possibilities and just making things up as you go along.

Example: domestic violence. Currently means spouse abuse. Previously meant "civil war", a clause permits federal intervention into a State on the occurrence of 'domestic violence' (on the application of the state concerned if memory serves). Times have changed and the meaning of the words "domestic violence" has changed. Does it follow that congress has power over spousal abuse?

[Imran Siddiqui]

From a legal perspective, the "doctrine" of progressive interpretation of a statute is really just hogwash. Statutes have an ascertainable possible meaning or, in ambigous cases, possible meanings, which are ultimately founded in the legal, political and social context in which they were enacted. Otherwise they simply have no meaning at all. Laying claim to a living statute or a living constitution is merely to substitute one's own political views for those of the legislators or electors who enacted the statute, simply because the meaning of the law changes (in effect) according to the political preferences of the judiciary.

Only if you come from a state with an Napoleonic code like law. In common law countries, it is very natural for progressive interpretation of statutes (in 1st years of American law schools there usually is a series of readings on the progressive nature of English courts on a particular issue). Statutes have always meant to be in some sense "living" in common law systems, to adapt to changes in society - the evolution being done by judges. Some founders did have a static view of statutes, but many had a far more living, breathing view.

[Zevico]

It's interesting to observe the assumptions people make when they come from different backgrounds. Imran comes from an American law school, and I suspect his observations differ in part because of that experience.

The Napoleonic code-like law, for example, has never been enacted in Australia, a country with a fairly strong legalist tradition. Australia is a common law country of far more 'recent extraction,' shall we say, than the United States. Until about the 1960's-70's, most Australians basically conceived of the United Kingdom as their cultural, traditional, legal and political "home."

Note the use of the word "legalist" to describe what might, in your country, be described as "conservative", perhaps, legal doctrine. The usage is perhaps deliberate. It implies that a legalist seeks to discern the meaning of the law, rather than what it ought to be, should be, and might be if the legalist in question had his say.

For example, the fact that I personally prefer to have single Parliament (in your parlance, Congress) instead of a federal system of government (adopted, to some extent, from your own), does not mean that I think the meaning of the Australian Constitution has changed and that it is now meaningless (I guess it "evolved" that way?). It does not mean that I think that the federal parliament has the power to pass valid laws in respect of every subject matter by a simple majority. It does not mean that, if those laws are challenged, I think the High Court should simply allow their passage because the meaning of the text is such that, in light of Australia's "progress", the federal parliament is now (effectively) a unitary parliament.

This is precisely the kind of shoddy thinking progressivism embraces. If it suits your politics, why not? Appoint a libertarian judge to the bench (watch him invalidate health care laws); appoint a unionist (watch him invalidate voluntary unionist legislation); appoint a business-oriented ideologue (watch him invalidate compulsory unionism); appoint a "liberal", appoint a "conservative." This is the "progressive" vision of the rule of law.

Intellectual honesty demands that progressivism be relegated to the dusbtins of history. Ultimately, a progressivist isn't demanding progress: he's demanding a change to the law without the assent of the people. The proposed change may be a good or bad, but changing without the assent of the people is the greater evil.

The English courts, by the way, are able to get away with progressive statutory interpretation precisely because they have a Parliament that can (and does) overrule them by simple majority at any time. That is not the case where the statute concerned is a Constitution.

Every time I have this conversation with a progressivist, they use phrases like living and breathing to describe what is nothing more than a piece of paper. Very well, statutes "live and breathe" and change in meaning over time. Does it follow, Imran, that the Congress now has power over spousal abuse? After all, the meaning of the words "domestic violence" have changed. The Constitution lives and breathes. And shouldn't the feds intervene into this very important matter?

You argue that "some" of the founders intended for the (American) Constitution to be "living" and others did "not." I frankly have never seen any passage from any framer of that document that plainly advocates the power for judges to change the law and the statute itself on a whim. Lawyers--English ones--had a hand in drafting this Constitution. Yet strangely enough, nowhere does it say that "the Supreme Court may, of its own motion, change the meaning of this text at any time." Nowhere does it say "The text of this Constitution is subject to judicial revision."

I do not know what English cases you read. I don't propose to make this argument about cases you haven't cited. More to the point, I don't propose to argue with you about the contents of your first year statutory interpretation course, or mine, or anyone else's. I don't think that's a sound basis for a debate.

[giblets]

How did this thread get hijacked by lawyers?

[Zevico]

How did this thread get hijacked by lawyers?

Wasn't constitutional law one of the issues you were discussing with BK?

[Imran Siddiqui]

Yes, down with progress

Especially this crazy radical:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

Btw, the guy that wrote that was a man named James Madison, also known as "The Father of the Constitution". Bastard!

Yet strangely enough, nowhere does it say that "the Supreme Court may, of its own motion, change the meaning of this text at any time." Nowhere does it say "The text of this Constitution is subject to judicial revision."

As anyone who has studied Marbury v. Madison, it appeared as obvious that the Supreme Court was responsible for interpretation of the document. Being a common law system, of course the Courts would engage in further and further interpretation based on situations that the Constitution did not seem to specifically deal with.

[Hauldren Collider]

Imran, Marbury vs Madison says that it is the duty of the courts to determine what the law is, not what the law should be. There is an amendment process for a reason.

The use of the 14th amendment to advance classical liberalism in every direction is not the way it ought to be done. Consequentialism is for things that aren't the foundations of our government.

[Imran Siddiqui]

If you can't see how one can lead to the other, you are completely dense.

[Hauldren Collider]

The law isn't always what it should be...thus I don't see how one can always lead to the other, no, and I don't think that makes me dense, I think that makes me a conservative.

[Imran Siddiqui]

So, basically... you are dense.

I hate to use this, because usually it doesn't apply, but in your case it must be said... come back when you've grown up a bit.

[Hauldren Collider]

I don't think your balls have even dropped, Imran, you are useless at trolling and logic. Just go the hell home if the best you can do as a retort is "LOL YOU'RE A KID GROW UP".