Comments on: Does Constitutional Law Exist? http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/ Free Markets and Social Justice Thu, 16 Nov 2017 17:03:00 +0000 hourly 1 https://wordpress.org/?v=4.8.3 By: Peter from Oz http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-80312 Wed, 14 Jun 2017 13:41:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-80312 The problem with Constitutional law is that it is not a matter of deciding the facts and then using the law to apply a remedy. Constitutional law can intersect with administrative law, and the Court can use the rules of statutory interpretation in any case that deals with the application or the constitutionality of a law. Otherwise Constitutional law is sui generis.
From what I can see of the American system Judges don’t agree on how to read the Constitution. Some are swayed by public policy or morality instead of the law.

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By: Peter from Oz http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-80309 Wed, 14 Jun 2017 13:16:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-80309 Privity is still god law in other common law countries.

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By: David Harrell http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-80289 Sun, 11 Jun 2017 20:28:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-80289 That would be subject to military law (presumably operative only in a time of invasion / Congressoinally declared war) in which normal Constitutional rights of course don’t apply.

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By: Farstrider http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-79500 Tue, 16 May 2017 21:14:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-79500 Well, ok. But we can change what I wrote to “fraud against the United States government” and “threats against, or defamation of, United States officials” without changing much of anything about my conclusion, which is that the First Amendment cannot be read literally.

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By: David Harrell http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-79440 Wed, 10 May 2017 21:52:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-79440 Actually, I don’t think any one would have expected Congress to be involved in such areas at all, as such matters are not among the enumerated powers of the United States government. Fraud, threats and defamation would have been State issues. The Sedition Act of 1798, where Congress did try to step in and limit speech against the government, was short-lived and caused a terrific backlash.

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By: The Syrian Strikes and Just War Theory - Bleeding Heart Libertarians http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-78795 Sat, 08 Apr 2017 20:21:19 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-78795 […] law. Some of those analyses are interesting, but for jurisprudential reasons I detail here and here, I regard them as inconclusive at best, and as disguised advocacy at worst, so I will not pursue […]

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By: Lacunaria http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-78672 Mon, 03 Apr 2017 00:45:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-78672

“why not the objective assessment of federal constitutional standards by the agreement of 3/4 of the states?!”

Because, as I said, what would the amendment possibly say? […]

You answered a different question than what I asked.

You wanted an objective assessment rather than the decree of a handful of judges, so my question was, why not require the judiciary to use an objective assessment of 3/4 of the states and call it a “precedent”? Is it simply the word “amendment” that freaks you out?

Again, what other test are you proposing to objectively assess social standards? It’s some sort of vote, right?

If social standards have changed, then prove it! That’s what the 3/4 mark is supposed to do, and uncoincidentally, that is precisely the degree of legitimacy of the Constitution.

That kind of specificity was never meant to be in Constitutions.

But $20 was? No, the ratifiers meant something and they expected it to be reasonably and consistently interpreted according to the original public meaning.

And no semantic drift has even occurred when all that’s happened is the same understanding of a concept is applied to what a new generation thinks involves different facts and values!

Unless that cultural relativism was part of the original public meaning, that’s exactly what “semantic drift” is!

The whole point of the 3/4 ratification is to block the tyranny of the majority but you are surrendering that power to a handful of judges!

It is inconceivable that the Framers would go to such lengths to require 3/4 consent of the governed only to let a handful judges profoundly change its meaning. That is why you felt compelled to clarify that there should be some test to objectively assess social standards.

yet we have to follow their now discredited and unaccepted ideas about how those concepts apply…if you don’t like it, amend it, though we have no idea what words you’d use since their understandings of these words are no longer accepted!’

Your argument makes no sense. If judges can put it into words to change the meaning, then so can legislatures.

The essential moral legitimacy of a contract comes from fixing meaning, not from fixing words. You are eroding the fundamental moral basis of agreements.

I could go on, but I’m hoping you’ll see the error of your argument as you consider and answer my question about the objective assessment by the judiciary.

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By: King Goat http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-78649 Fri, 31 Mar 2017 23:38:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-78649 “why not the objective assessment of federal constitutional standards by the agreement of 3/4 of the states?!”

Because, as I said, what would the amendment possibly say? “Cruel and unusual punishment is prohibited, but let’s add that punishment Y, which was thought OK by the people who passed this amendment, but now after scientific discovery and moral development nearly everyone thinks it’s much more awful, is indeed cruel and so prohibited?” That kind of specificity was never meant to be in Constitutions. And no semantic drift has even occurred when all that’s happened is the same understanding of a concept is applied to what a new generation thinks involves different facts and values! It’s still a judgement of what the text demands, is it cruel or not? If science discovers tomorrow that solitary confinement causes way more misery than people once thought, you would have us amend the 8th Amendment with some language like I quoted above? That seems bizarre, and again, not like usual Constitutional language.

“Do you honestly believe that any significant proportion of the original ratifiers or public would agree that “interstate commerce” entailed that the federal government could control what a person can grow on their own property for their own consumption?”

No, I don’t. But I also don’t think they envisioned the kind of economy that exist in 1930’s America. What they wanted was a federal government with powers of regulation to address what we might call national ‘collective action’ problems in the area of the economy. There’s no dispute they wanted an effective power to regulate interstate commerce. By the 1930’s the facts had changed, it was realized that no effective, meaningful regulation of interstate commerce could occur without some regulation of some intrastate commerce. Wickard simply gave meaningful effect to the power explicitly in the text given the conditions, it wasn’t an amendment.

“they should overwhelmingly agree upon anyway since that is the threshold of legitimacy of the Federal Constitution.”

That same 3/4 process created a Constitution which explicitly granted the federal Courts the power to give meaningful interpretation to the provisions of the Constitution, and did so in an era in which Common Law theories of interpretation and application of the law were not just largely prevalent, but for most the only known way to even think about how law works. Given that, I’d say fealty to the original understanding of the Constitution *includes* fealty to the idea that the Courts would interpret its provisions in the Common Law tradition, that is, to take into account changing conditions to make them ‘work’ in every generation, keeping the principles the same even if the specific applications *must* change (because conditions have changed).

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By: Lacunaria http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-78618 Tue, 28 Mar 2017 20:55:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-78618

Note, when I say each judging generation I don’t think the criteria should be: what five justices think is cruel. Instead a test should be fashioned to try to objectively assess the ‘evolving standards of decency’ of the society currently around them.

Wow! This is key! Haha, why not the objective assessment of federal constitutional standards by the agreement of 3/4 of the states?!

It’s funny, but what other assessment do you have in mind? Because in practice, that’s exactly what you have been doing: advocating what five justices can get away with, instead of the objective assessment that the Framers actually created.

Also bear in mind that the domain of the federal government was to be limited to select powers that we can pretty much all agree upon, so evolution should be pretty rare at that level.

Regarding the rest of your argument:

Agreements are invalidated when their meaning changes, so yes, we absolutely must infer what was actually agreed upon and reasonably understood at the time in order to maintain the semantic stability and legitimacy of the Constitution (or any agreement).

Now, if you want to argue that they originally expected cultural relativity on some issue, great, I might even agree, but their reasonable expectation that the courts would settle the details does not entail that they expected those details to perpetually shift relative to SCOTUS’s estimation of culture. Those are two separate claims.

You basically have two major practical problems with your argument which still need to be addressed:

(1) You are arguing at the fringes. The hypothetical cases which you are arguing are different in kind and scope from those that Sean cited.

Do you honestly believe that any significant proportion of the original ratifiers or public would agree that “interstate commerce” entailed that the federal government could control what a person can grow on their own property for their own consumption?

Do you honestly think that they were agreeing to make that meaning relative to SCOTUS’s own estimations of culture?

(2) Worst case scenario with my approach is semantic consistency and that 3/4 of the states have to agree to change something that they should overwhelmingly agree upon anyway since that is the threshold of legitimacy of the Federal Constitution. If they can’t agree, then it should be handled at the state level.

Worst case scenario with your approach is that SCOTUS becomes an end-run around amendment (an objective assessment!), the Constitution loses its semantic and moral legitimacy as an agreement, and raw power shifts to the federal government.

Where do you think we are as a nation?

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By: King Goat http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comment-78616 Tue, 28 Mar 2017 14:28:00 +0000 http://bleedingheartlibertarians.com/?p=11668#comment-78616 I’m not switching, I think both are relevant (or rather involve the same thing). Broadly written (and, as I argue even not so broadly written measures, like the 20 dollar example) provisions in a Constitution contain broad concepts or principles. How these are to be applied to specific cases (is case Y an example of ‘undue’ or ‘due’ process? Is case X an example of a ‘reasonable’ or ‘unreasonable’ search? Is case Z an example of a ‘cruel’ or ‘not cruel’ punishment?) is necessarily going to be informed by current understandings of those concepts and the facts around each case and what those facts mean. That includes, but isn’t limited to, ‘science relative’ facts. Not only could an 8th Amendment decision be reversed because science discovered the pain of a punishment was beyond the ‘level’ of pain the Founders understood to be the threshold for a cruel punishment, but the very threshold, in degree or kind, can and should be determined by different generations idea of what is cruel. The Founders didn’t write a list of punishments they considered cruel and ones that they considered OK, or some criteria underlying such classifications, rather they wrote a provision for future generations to apply and it said simply ‘cruel.’ The most reasonable conclusion from this is they didn’t want us to engage in some historical mind reading about what criteria and specific punishments their generation thought cruel, but we’d come to some way of determining what each judging generation thought cruel. Note, when I say each judging generation I don’t think the criteria should be: what five justices think is cruel. Instead a test should be fashioned to try to objectively assess the ‘evolving standards of decency’ of the society currently around them.

This will lead to different rulings on specific applications at different times, but there still may be no violation of the principle in the written text (again, the principle is often all that’s in the text, specific applications are rarely so). Flogging can be allowed at T0 because it was not thought, given the moral and scientific understandings of that time, to be overly cruel, but it could be barred at T1 because given later moral development and scientific understandings it is seen as unconscionably cruel. I don’t think any violation to the language has been done. It says to judge it by whether it’s ‘cruel’ or not, and perceptions of cruelty are by nature relative, changing things. What would be an unjustifiable amending, imo, is if the Court largely or wholly ignored the criteria of cruelty.

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