Catholic Charities Mixes Politics with Community Services

[Zevico]

1. Soon-to-be-lawyer. That means I can charge people by 5 minute increments in about half a year. Got the degree though.

2. Re: Federalist #37.
There, Madison concedes that some degree of uncertainty will inevitably eventuate in laws, largely because no concept, legal framework or idea can always and necessarily resolve every circumstance. In such ambiguous cases, the judiciary is forced to step in and fill the gaps where it must. It does not follow, however, that such a decision is "correct" in the sense that it was intended; it merely means that the judiciary has answered a question in order to resolve a legal controversy. This is done as a last resort, not the first.

Legal progressivists advocate this approach as a first resort. Making up the answer as a matter of first resort is not an idea for which Madison advocates, as he made plain in the very passage you quote above. Nor is it one for which he advocated in Federalist #37. I won't quote it as it's quite long--it's available online so anyone interested can google it, read it and prove me wrong if they wish.

This, in essence, is what progressivists argue: "well, where the answer to a legal question is one we simply don't like, we can always declare that the Constitution lives and breathes and therefore, the answer changes to become, of necessity, one that we like." That is a very silly idea indeed--and it is precisely the idea that legal progressivists advocate.

[Ben Kenobi]

This, in essence, is what progressivists argue: "well, where the answer to a legal question is one we simply don't like, we can always declare that the Constitution lives and breathes and therefore, the answer changes to become, of necessity, one that we like." That is a very silly idea indeed--and it is precisely the idea that legal progressivists advocate.

Wow, someone who rejects legal positivism, on Apolyton? Pure awesome. You go, zevico!

[Lorizael]

Wow, someone who agreed with me, on Apolyton? Pure awesome. You go, zevico!

Fixed.

[Zevico]

He says words change (it's why I suggested a reading of Federalist 37) and, in Fed 37, throughout English history that statutes didn't really get fully defined until there were numbers of court cases that determined the full meaning. He seems to be speaking of it as a necessary evil but necessary nonetheless due to the nature of language. So I'm reading into Madison what he says somewhere else on the matter.

1. You didn't suggest it until this post. You took the above quoted passage as a stand-alone, and it's clear that you understood it on a stand-alone basis. By stating that you're reading into that passage a proposition that Madison (supposedly) advocated for elsewhere--effectively stating that this passage and federalist #37 "read together" render your case comprehensible--you're pretty much conceding that the quoted passage, alone, does no such thing.
2. What's more to the point, though, is that you're reading into Madison what you want him to believe. There's simply no doubting that anymore. Federalist #37 simply doesn't advocate for or address what you say at all. It simply states that no one is a mind reader capable of foreseeing every circumstance, and hence that not every outcome is foreseen or addressed by the law. Does it follow that outcomes foreseen and addressed by the law should be ignored and replaced with outcomes preferred by the judge? Of course not, and Madison never suggests otherwise.
3. Madison doesn't speak of court cases as determining the full meaning of the law, by the way: he points out that the full meaning of the law is often difficult to determine, which is a very different thing from saying that any aspect of the law whose meaning is relatively clear ought to be thrown out the window if you don't like the outcome.

Still waiting on those legal progressive framers.

[Berzerker]

I'm talking about the fact that the reconstruction amendments have been used to place the requirements of the bill of rights to the states, but only the parts of the bill of rights that we actually like, which is a totally consequentialist (as opposed to following actual procedure) approach to constitutional law.

judging by our laws I'd say we dont like much about the bill of rights

[Imran Siddiqui]

1. You didn't suggest it until this post. You took the above quoted passage as a stand-alone, and it's clear that you understood it on a stand-alone basis.

Post #261 & nothing is ever "stand alone", it must be read in its context.

Federalist #37 simply doesn't advocate for or address what you say at all. It simply states that no one is a mind reader capable of foreseeing every circumstance, and hence that not every outcome is foreseen or addressed by the law.

Madison doesn't speak of court cases as determining the full meaning of the law, by the way: he points out that the full meaning of the law is often difficult to determine

Madison does mention that meaning of a law is determined by teasing it out in various court decisions (in Fed 37 when discussing the British courts). So if every law maker can't be a fortune teller and can't address everything and the true meaning of laws usually comes out in court decision making, well, just put two and two together.

Still waiting on those legal progressive framers.

There kind of was a whole party that arose that believed the Constitution wasn't such a closed document. Perhaps you have heard of the Federalist Party, the ones who pushed for judicial review (Chief Justice John Marshall). What, you think legal positivism arose according to Chief Justice Warren's court?

And, of course, they were all quite alright with the common law, where the judiciary had such powers, & even in the face of contrary examples (for example, Louisiana is still a civil law state to this day) they didn't depart from the common law basis of their legal system.

[Hauldren Collider]

judging by our laws I'd say we dont like much about the bill of rights

And this is precisely why the living constitution concept is so dangerous and the amendment process is far preferable in my opinion.

[Berzerker]

I agree with that, but thats a different issue - the "living Constitution" position would replace the text with a modern reading based on today's culture while its clear to me the 14th Amendment created dual citizenship for Americans effectively, no, ostensibly blocking the states from violating the bill of rights (in a piecemeal manner as you pointed out).