The following quotations came from the thread Bible Class Elective in Public Schools: Will it Pass Constitutional Muster?

While they are interesting statements, they seem to veer from the topic at hand to a sub-debate on methodology and philosophy in studying constitutional law and debating the constitution. So, I’ve decided to start a new thread on this matter.











http://www.americasdebate.com/forums/index...60&#entry151401

Questions for Debate

1. Are Constitutional Law and Constitutional Debate something that can be approached independently or is the principle of stare decisis so intertwined in these disciplines that they cannot be separated from the text of the Constitution itself? Please explain answer.

2. If the two are independent, do we need separate forums for debate of the Constitution and case law interpreting the Constitution as the author of the above statements suggests?

1. Are Constitutional Law and Constitutional Debate something that can be approached independently or is the principle of stare decisis so intertwined in these disciplines that they cannot be separated from the text of the Constitution itself? Please explain answer.

The two are inseparable. The Constitution does not and cannot address every detail of our existence, if only because society, the economy, technology, and the nation have changed enormously in the last 200 years. So the Constitution paints the big picture and leaves out all the minor details.

For readers who have an active visual imagination, a visual analogy might help. Think of a master Renaissance painter who lays down the outlines of his painting and leaves the fill-in to his apprentices. Here is his painting when he's done with it: a grand sketch with some places filled in and other places left empty. There's a lot of empty space on that painting, but the master has placed enough for the apprentices to figure out how to fill in the empty spots. They don't need to be grand masters to figure out what belongs in those empty spots -- just reasonably competent painters.

I think it's useful to think of the Constitution in this way. The Founders didn't spell out every detail of "freedom of the press", and there are all manner of fine points that they left unaddressed. But it doesn't take a great deal of judicial creativity to flesh out those details. You just have to understand the Constitution -- which sometimes can be difficult.

The role of stare decisis in all this comes when we think of the work of the apprentices. They have started filling in some of the blank spots in the painting, but their work is not complete; there remain plenty of empty spaces. Basically, stare decisis says "Don't mess with the filling-in that previous apprentices have done -- you'll just make a big mess. Fill in empty spaces in a manner that is consistent with the work they've already done. If the Constitution shows the edge of a building moving along towards the right, and one of the apprentices filled in some more of that edge, extending it a bit, then don't you break that line arbitrarily."

Those whom you quote who maintain that, if it's not explicitly declared in the Constitution, then it doesn't exist, completely fail to understand the necessarily skeletal nature of the Constitution. They see the same partial painting yet insist that the gaps in the painting must never be filled in except by the Congress. This attitude is wholly impractical: what happens when a court case arises in one of the empty areas? Is the judiciary to simply shrug its shoulders and declare, "Gosh, we don't know what to do!"

Indeed, a careful analysis shows just how absurd the "narrow constructionist" position is. Let us suppose that a case arises that is covered properly by the Constitution. Let's say it's a freedom of the press case. Here's a newspaper that the government wants to shut down. All of us, narrow constructionists included, agree that this is a violation of the "freedom of the press" entry in the First Amendment, so everybody's happy.

But now suppose it's not a newspaper, but a periodical published on an old mimeograph machine. A mimeograph machine isn't a printing press, so strictly speaking it's not covered under the First Amendment. However, the judiciary in its shockingly activist arrogance, decides that First Amendment was intended to apply to mimeograph machines even though such machines didn't exist in 1787. The narrow constructionists would be up in arms if they were truly consistent. "How dare those judges twist the meaning of the Constitution to cover machines that the Founders clearly had no intention to include in the First Amendment?"

OK, we can all dismiss this as silly because mimeograph machines are old hat. But now comes along the Internet. Is the Internet covered under the First Amendment? It's certainly not a printing press because it doesn't require paper. It's not speech because the contents of the Internet aren't spoken, so freedom of speech doesn't apply either. However, the judiciary in various precedents have extended the concepts of "speech" and "the press" in the First Amendment to cover all manner of expressions that are neither: movies, games, email, blogs, etc. None of these things existed in 1787. The judiciary has extended the concepts of free speech and a free press to cover new technologies. This is precisely how the Constitution should be used. But our narrow constructionist friends would deny free expression in movies, television, games, and the internet because these media are not explicitly covered in the Constitution. Pretty silly, eh?

2. If the two are independent, do we need separate forums for debate of the Constitution and case law interpreting the Constitution as the author of the above statements suggests?

Since I maintain that the two are interdependent, the question fails in its premise for me.

Text of Article 5



Amendments to the constitution seem like a pretty important thing according to the constitution. If you want the constitution to say something, then there is an amendment process that is spelled out within the constitution.

However, the lawyers amongst us would like to claim that precedents join constitutional law to the hip of the constitution, as it were.

What is the difference between joining case law to the hip of the constitution to amending the constitution? Well, the obvious difference is that the Supreme Court doesn't have to amend the constitution in order to add something to the constitution (albeit at its hip).

No, the founding fathers didn't spell out every detail of "freedom of the press". However, they did leave a way out, and that is contained within the text of article 5.

Or we can simply allow SC case law to be considered as precedents for what the constitution should or would or might or probably says.

The Constitution is a living document. That doesn't mean that the meaning of the text has to remain forever transient according to the whim of SC rulings. The very clear language of "The Document" is very important to many Americans because we can all read it and decide for ourselves whether our Supreme Court is basically saying something that is not found within the text of the Constitution.

But then the lawyers have taken to claiming that precedent takes precedence over the text of the constitution. According to them, it is no longer a document that the average American can point to and say "but wait a minute! That's not what it says!!!!". No, they'll start in with citing precedents as if deciding what the constitution says must take into account a ton of paperwork generated by the supreme court as if they are the only ones capable of actually reading simple English.

Erasmussimo wrote:



If a court case arises which is not dealt with in the constitution, then it is not a matter for the supreme court. Is this really that difficult to understand? But let's say that there is some border-line case such as the second amendment which reads:



Who is to judge whether a particular militia is well regulated, or even if this motley group of gun toting rednecks should even be considered a militia?

This is where the amendment process needs to kick in. The Supreme Court is allowed to define what those terms mean, but is anybody really happy with the imprecise wording of the second amendment?

When situations arise due to the mere passage of time, or whatever, that require an amendment to the constitution, then there is a process spelled out in the constitution that allows us to do so. But to simply allow precedents to spell out what those terms mean is taking the constitution away from the American people.

I agree entirely that the amendment process is the best possible resolution to the problem of changing social, economic, and technological factors. It's also the best possible resolution to the problem of vague phrasings. To fall back on my analogy of the painting, an amendment officially fills in an empty space of the painting, relieving the judiciary of the burden of figuring out what was supposed to be there.

The problem of abortion provides us with a perfect example. Conservatives are unhappy with Roe v. Wade. Liberals want to preserve it. We're all bracing for a huge confirmation fight in Congress over future Supreme Court justices, and the abortion issue is an important factor in that confrontation. It would be so much better if we passed a constitutional amendment resolving the issue once and for all. But, to put it bluntly, Congress is too cowardly to face the issue because it's certain to outrage consitituents. A large majority of the American people favor protecting the basic right to get an abortion, yet the political clout of a passionate minority cows the Congress into inaction. This is a political problem, not a legal one.

So what are we to do? Should we have spent the last 40 years sitting on our hands? Had we done so, some states would have strict laws forbidding abortion and others would be more permissive, and women wanting abortions would cross state lines, creating a discriminatory system based on wealth, and poorer women would resort to back-alley abortions with high risks that imposes. That situation would be even worse than what we now have.


We can't discuss this clearly when you use obfuscatory terminology. The juciary does not "amend" the Constitution -- it interprets it. The judiciary does not "add" anything to the Constitution -- it tries to apply the Constitution to situations not directly addressed by the Constitution.


You would require a constitutional amendment to extend freedom of the press to cover mimeograph machines; then another one for movies; then another one for the Internet; and with the development of each and every minor new technology of expression, yet another constitutional amendment to extend the freedom of the press? Or would you require a grand sweep amendment simply extending freedom of the press to any medium of expression? That would be nice -- but until that happens, we're all stuck without constitutional protection for this very discussion.



This is absolutely, totally wrong. In the first place, you demean the process when you say "lawyers" instead of "justices". Nobody gets onto the Supreme Court unless they're very, very good.

In the second place, never in the history of the judiciary has any justice attempted to overrule the Constitution. It remains the foundation upon which all case law is built. I challenge you to provide us with an example of any justice claiming that case law trumps the Constitution.



The fact that the average American has difficulty understanding the finer points of Constitutional law is nothing to bemoan. Would you restrict the entire corpus of law to a few dozen pages written at an eighth-grade reading level? How could such a body of law possibly resolve complicated legal disputes involving liability, indirect participation in injurious behavior, and so forth?


It's easy enough to understand, but it leaves a lot of people in the lurch. Enron2.0 pulls all manner of accounting tricks, cheats the public out of hundreds of millions of dollars, goes bust and the executives walk away with hundreds of millions of dollars and you say, "Too bad -- the Constitution doesn't say anything about accounting tricks; they get off scot-free!"


Here you have placed your finger on the nub of the problem. We'd all prefer to have amendments resolve every constitutional problem, but for 200 years the Second Amendment has remained unelaborated. So it's the judiciary's job to define those terms, to clear up the uncertainties that exist in the text. Would you deny the judiciary that responsibility?



It's ironic that you should use the adverb "simply" here, because your argument is flawed by its overly simplistic view of the function of the law. I shall offer a purely hypothetical example to explain my point. Suppose that the Constitution at some point refers to the color blue. At some point a legal dispute arises over a color that one party claims to the blue and another claims to be not blue. So the judiciary has to come up with a definition of the word "blue". They say that blue is any color closer to the color of the sky than to either the color of an oak leaf or the color of a daisy. That's better; it serves us fairly well. But then someday a new case comes along that cannot be resolved by their definition. So now the judiciary works on it some more and comes back with a definition based on the now available RGB color system. Now we have a precise definition of the term "blue". The average American can no longer understand it. But the precedent that has been established provides the basis for all future decisions involving the term "blue".

This does not take the Constitution away from the American people. It spells it out in more detail.

I don’t know that there are lawyers who argue that precedence is more important than the Constitution of the United States itself. Precedence is, however, important in the ongoing process of interpreting the document.

On March first of this year the United States Supreme Court ruled in Roper v. Simmons that defendants who committed crimes before their eighteenth birthday could not be executed.

Justice Antonin Scalia, the Court’s formost advocate of “textualism” or “originalism” issued a dissent. I just looked at Scalia’s dissent and notice that he cited no less than 32 cases (I may have missed a couple) in the preparation of his dissent. See list below.

Even the justice most noted for arguing for a textual approach to Constitutional law cites nearly three dozen precedents in dissent. I would suggest Oyaji that this leaves your argument sorely lacking.

List of Cases Scalia Cited in His Dissent to Roper v. Simmons

Tropp v. Dulles
Sanford v. Kentucky
Atkins v. Virginia
Coker v. Georgia
Ford v. Wainwright
Enmund v. Florida
Penry v. Lynaugh
State v. Fuirman
Thompson v. Oklahoma
Brennan v. State
State v. Davolt
Eddings v. Oklahoma
Gregg v. Georgia
Witherspoon v. Illinois
Conroy v. Aniskoff
Hodgson v. Minnesota
McClesky v. Kemp
Loggins v. State
Duncan v. State
Bellotti v. Baird
Planned Parenthood of Central Mo. v. Danford
Mapp v. Ohio
Bivins v. Six Unknown Fed Narcotics Agents
Rosenberg v. Rector and Visitors Univ. of Virginia
Roe v. Wade
Harmlein v. Michigan
Lawrence v. Texas
United States v. Virginia
State Oil v. Kahn
United States v. Hatter
Rodrigues de Quijas v. Shearson/American Express, Inc.
Planned Parenthood of Southeast Pa. v. Casey

http://caselaw.lp.findlaw.com/scripts/getc...00&invol=03-633

The problem with this is that you are simply complaining about what many would like to have amended to the constitution. Congress might be too cowardly, but that's the system and the Congress that we have. Much more importantly, you can find that the legislative powers of the constitution are spelled out in the constitution, and this is granted to congress.



Depends. You might claim an inactive Congress to be a problem, but it seems to me that every time they start getting active, it just means more laws. We already have enough of those, thank you.



Again, this is only a problem if you think of it as such. The SC's decision in Roe v. Wade created a precedent that is unconstitutional because according to the tenth amendment and states rights. I can point straight at the tenth amendment and say 'that's why states have the right to grant or not grant abortions'. You would have to point to Roe v. Wade and claim that the decision reached by the SC invalidates my claim. Surely you are aware of the reasoning the SC used to arrive at their decision.

You really want to argue that the right to privacy can be found within the constitution, and furthermore, that the right to privacy also grants women the right to abortions. And that's why the tenth amendment isn't relevant to the discussion? If you do, you're a braver man (or woman I dunno) than I.



I think that the reason we have judges or juries is because it was understood by the founding fathers that the spirit of the law, and the language of the law are not always synonymous. When a Supreme Court makes a decision and explains the reasoning behind the decision, I would love to be taught exactly what a particular clause or amendment really means. I would like to think 'here stands a man who understands the dignity and the beauty of the constitution'. If the supreme court explained that the first amendment was concerned with protecting the rights of Americans to say what they want without fear of reprisal, and this is what the first amendment means, then I wouldn't argue. I could sleep well at nights knowing that we have supreme court justices that respect the spirit of the constitution.



Difficult to do because the Supreme Court is a priori when it comes to the judiciary. However, to use Roe v. Wade again, I would point to the abortion clinics which are supposedly protected by the constitution thanks to the precedent of the decision. Now if anybody can find the relevant sections, point them out, and explain how amendment X, clause Y obviously grants Americans the right to abortions, doing so with a straight face and a clear conscience, then I might concede the point.



The constitution does not limit legislation. However, it does limit what kind of legislation is allowed. The problem is that precedents are not legislation, yet appear to be used as such, as my example of Roe v. Wade points out.



The tenth amendment deals with this issue by granting states rights.



If they can clear up ambiguities without straining credibility, then no, I would certainly not deny them that responsibility. Look, we've all read the constitution and I believe we all can see it for what it is. It's not a particularly difficult piece of writing. The plot bogs down in places, and is ambiguous on certain issues. But what it obviously is not is something that requires years of studying constitutional law in order to understand it. If a case involving school prayer comes before the supreme court, then their job is to clear up any ambiguities found in the first amendment. It's a simple job, but a very important one. A supreme court justice's job is to protect the text of the constitution, rather than obfuscate it.

I don't think that Roe is the crux of the issue. It is not about preserving decisions like Roe, I think it is about whether the Constitution will be further expanded to encompass newly identified "rights" in the Constitution. Even Scalia (who I want to clone for all new judicial appointments!) is a stalwart defender of stare decisis which protects a 30 year old decision like Roe. It may be contained through parental notification statutes etc, but the fundamental right to choose to have an abortion ain't gonna change without a constitutional amendment. Even if Roe was overturned (beyond possibility IMO) it would only mean that states could regulate abortion. Politically I cannot imagine the electorate outlawing abortion except in maybe a state like Utah.







It is absurd to say that the Constitution must be read without regard to precedent. It is simply inconceivable. We cannot demand that as it would be completely unworkable. The Constitution is drafted broadly and must be interpreted. The courts are charged with this interpretation. What needs to happen is that we must demand that judges are held to certain specific criteria in their decisions. For example, they must look to the original intent and be constrained by the overall text of the constitution. Originalists and pragmatic textualists understand this.




You will never find such an example. However, you will find many examples of the Court "making" new law and essentially amending the Constitution. The juvenile death penalty case is the perfect example of the court arriving at a decision that reads a new "right" into the constitution and also ignores its own precedent. The recent affirmative action case in law school admissions is another example of abuse. The Court basically identified "diversity" as a "compelling state interest" sufficient to justify racial discrimination. Where on earth did they get this? No where in the text of the Constitution will you find a basis for these decisions. And that is the problem. Judicial interpretation that proceeds without any regard for the text or intent in the Constitution is basically a license for judges to dictate public policy. I challenge anyone out there to identify what criteria were used by the court in arriving at some of these decisions. A good place to start would be the juvenile death penalty case or the affirmative action case.

Your logic is flawed. First off, he is not citing precedents. He is citing similar cases in order to bolster his argument. This is basically an argument by analogy. Not something any decent logician would resort to, but it is expected by his colleagues. Secondly, if Scalia is supposed to have similar views to mine, but his argumentation is dissimilar, then you have shown no similarity between Scalia's views and my own. In fact, if you have proved anything, it was to show that the similarity you wish to argue for, is in fact not true.

The tenth amendment is the workaround to any unworkability found within the text of the constitution. If it isn't in the constitution, then it is left to the states, or the people, to decide. Simply because a particular case is argued to be unconstitutional doesn't mean that it is. If the constitution doesn't explicitly mention something said to be unconstitutional, then it should be labeled "not applicable" and handed back to a lower court.

What circumstances in any theoretical case might arise that should be considered constitutional, but isn't exactly spelled out in the constitution?

This discussion is disintegrating into a disjointed collection of random picayune disagreements, so I will focus my attention on just a few important points.


Justice Blackmun is also a braver man, as he did precisely what you describe, in great detail.


Then read Justice Blackmun's opinion in Roe v Wade. If you have difficulties (I certainly did) with certain points, then dig into those and read some more. It's all there, it just takes some time to study, and it's all made with a straight face and a clear conscience.


I think you are denying a great deal of subtlety here; these issues are not cut-and-dried, they are not simple-minded. I suggest that you get one of the books explaining some of the intricacies of constitutional law at a popular level; an old classic is "A People's History of the Supreme Court"; another is "The Brethren". There are lots of other good introductions to constitutional law; I'm sure Hayleyanne can recommend some others.

Next, I'd like to expand on my painting analogy with respect to the notion that the Supreme Court creates law. The Constitution spans the entire canvas of social issues; one way or another, it does provide some guidance on any conceivable social issue that may arise. However, it leaves many areas of the canvas blank. We would prefer to have Congress fill in the large blank areas with amendments, but in the absence of such amendments, the judiciary must fill in those blanks by an interpolation process based on the existing areas that are already filled in. Thus came the right to privacy enunciated in Roe. It was never declared explicitly in the original Constitution, but over the years the judiciary had filled in a variety of nearby blank spots in the canvas. Blackmun was able to perceive the larger pattern in the painting that existed, and use that perception to fill in an area that had previously been unapproachably blank. He saw a bit of an eyebrow here, a touch of chin there, a portion of an ear, a hint of a nose, a very clear iris, some cheek, and perceived an entire face, which he then proceeded to fill in. Now, I will grant that many people don't see that face, and they are welcome to deny its existence, but the Supreme Court justices -- the supreme interpreters of the Constitution -- interpreted it that way and so that's how the painting has been filled in. It is wrong to accuse them of creating law. They all saw the same face in the painting.

There's an interesting counteranalogy I'll bring up. You may recall the case of the water-stained concrete that people saw as representing the Virgin Mary. A strict rationalist would reject this interpretation as nonsense; would not the perception of the face in the constitutional painting be taken the same way? I would agree that if it were just a couple of ignorant shmucks like you and I seeing the face, then others would be justified in laughing at us. But we're not talking about ignorant schmucks shooting the breeze -- we're talking about the top constitutional experts in the country, appointed to perform exactly this task because of their proven merit. If those experts look at the painting and see the face, then dismissing their expert conclusions as "making up laws" is wrong.

This is patently false. There are only two “workarounds” 1. Constitutional Amendment and 2. Judicial interpretation.

Let me Illustrate:

Example 1—Constitutional Amendment

According to Article 1, Section 3, Clause 1 of The Constitution of the United States the two Senators from each state were chosen by their respective state legislatures. Amendment XVII ratified in April 1913 changed election of Senators to popular vote.

Example 2—Constitutional Amendment and Amendment to an Amendment

In January, 1919 we ratified Amendment XVIII which prohibited “manufacture, sale or transportation” of alcoholic beverages in the United States.

In December, 1933 we ratified Amendment XXI, which repealed prohibition.

Example 3-Setting and Overruling a Precedent

In 1918 The United States Supreme Court declared an act of Congress “intended to prevent interstate commerce in products of child labor" unconstitutional. In writing the opinion of the Court, Justice William Day wrote in Hammer v. Dagenhart:



Ah, the old state’s rights argument. Liberals, however, should not despair. In 1941 the Court reversed itself. Justice Harlan Fisk Stone, writing the Court’s opinion in United States v. Darby wrote:



Example 4—Setting and Overruling Another Precedent



http://www.closeup.org/punish.htm

The Court has refined its position in this decade. Atkins v. Virginia (2002) and Roper v. Simmons (2005) have declared the death penalty cruel and unusual punishment for the mentally retarded and those committing crimes as minors.

Now here is my point in all this. I agreed with Amendment XVII. Popular election of Senators was, in my opinion, an advancement in democracy. I also agreed with Amendment XXI that overturned prohibition. Further I absolutely loved the way Justice Stone overruled the precedent set by Hammer v. Dagenhart in United States v. Darby. I would suggest that the cases involving child labor were as controversial in their timeframe as Roe v, Wade and Roper v. Simmons are today. Did we have activist judges in 1941?

That does not mean the ball has always bounced to me without a curve of some sort. I think the court made a bad decision when it reinstituted capital punishment in Gregg v. Georgia.

Despite my objection, capital punishment is legal. It’s legal by court fiat. The death mill in Huntsville, Texas grinds on. Governors Bush and Perry have not asked my opinion. Neither has the Board of Pardons and Paroles.

Gregg v. Georgia is precedent for the time being. I don’t like it, but the Court’s decision is law.

I assume you are recommending these books because they will help explain the parts of the constitution that I am having trouble understanding.

Surely you see the problem with this. I have been explaining for quite some time now that the constitution is fairly easy to understand, and there isn't that much that can't be understood by anybody that can read at a junior high school level. The problem is that you are now disagreeing and saying that it isn't easy to understand.

In other words, we have arrived at a stalemate because neither of us is willing to concede the other's premise regarding the difficulty level of the text in the constitution.


Similarly, your painting analogy operates from the assumption that there are many areas on the canvas which are blank. This is another premise that I am not willing to concede. To use a similar analogy, I would say that the constitution is a Picasso. Quite easy to understand what it is, but I'm not really sure if that is an eye, or a nose in the middle of the forehead. That is the ambiguity that I have conceded.



Actually I wouldn't. I would prefer to leave areas not covered in the constitution to the states, but there is a process by which Congress can add a piece of canvas to the picture, or repaint a particular area.



That's fine. They've almost completely lost any credibility with me over the years because of some of their interpretations of the constitution. They still have the job because it's lifetime tenure, and even if it wasn't, I'm just one American who doesn't have the power to fire them for what I consider to be incompetence.




It's not their job to fill in blank spots. It's their job to explain the painted canvas. That's actually what the right to privacy we got from Roe v. Wade is supposed to be. It's an explanation of the painted area of the canvas which guarantees the right to privacy, thus abortions, and that this is contained within the constitution.

I'd laugh, but I'm too busy crying.



Another premise I'm not willing to concede is that these "constitutional experts" can do their job better than I could do their job. If I did automatically concede that they know more about it than I do, then I would have to also concede this debate.

And the 9th Amendment? What does that Amendment state? It is out of this Amendment that the right to privacy stems. There are many rights that exist that are not specifically laid out in the Constitution. The 9th Amendment recognizes this fact. If you do not believe that the right to privacy is protected under the Constitution, you are going to have to go back in time and reverse the many, many decisions related to a right to privacy. Welcome back to a time in which the government will be able to tell you that you can't use contraception. Do you want that?

If there is a right to privacy, then the 14th Amendment supercedes the 10th Amendment.

My first reaction to this assertion was astonishment at the hubris of declaring oneself superior in understanding to the creme de la creme of constitutional law. I myself pontificate on all manner of subjects, but my self-assurance does not go as far as yours; I am willing to defer to the experts.

My second reaction is that this discussion has no longer any hope of accomplishing anything, as it is impossible to discuss anything reasonably with The World's Greatest Expert, especially one who denies any need to acquire expertise to be The World's Greatest Expert. Vaya con dios.

I apologize if I come across as "the World's Greatest Expert", but that was not my intent. Your argument forced the answer I provided, and your respect for the SC justices provided the rest. And yet again, your reply is forcing an explanation from me that might not sit well with your image of my abilities.

When you argued that the Justices of the Supreme Court are experts at constitutional law, you committed a fallacy known as ad vericundiam. It basically means a fallacious appeal to authority.

http://www.nizkor.org/features/fallacies/a...-authority.html

Let's say that I were to concede your point that the supreme court justices are better at constitutional law than I am. Let's even go further and concede that they know more about constitutional law than anybody here on these forums.

Congratulations! We now have nothing to debate! All we have to do to win a debate is to point to what the SC says about a certain matter, such as abortion, and immediately everybody who is opposed to abortion has automatically lost the debate. The Supreme Court has spoken! It's in the books! Let's go on to the next item which might be the right to privacy. Can't debate that either because it's already been decided by those who know more about the constitution than non-experts.

This is why I wrote that I would have to concede the debate if I were to concede that the SC justices know more about the constitution than I do.

Let's take your argument that the judiciary branch is composed of unassailable experts so we can't disagree with their superior knowledge of the constitution and apply it to the executive branch, shall we?

You still want to maintain that those guys are the experts so anybody that disagrees is clearly delusional?

The ninth amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Has the right to privacy been retained by the people? To a certain extent, yes.

I might be wrong about this (see? I'm not the constitutional expert you think I believe myself to be), but doesn't this mean that it is understood that the constitution can't spell out every right we, "the people", might wish to retain so long as it is not taken away from us by the constitution?

If so, then doesn't the tenth amendment allow states the right to let the people choose to retain a right? You've got to admit that a few states aren't all that interested in retaining the right to abortion.

Anyway, this is getting far and away from the topic of debate which is to ascertain whether starre decisis should allow the constitution to be interpreted according to previous court rulings.

In order to get back on track, I will remind everyone that my basic argument relies on the text of the constitution as it is written to be the property of the American people. It should be something that we can comprehend, as well as trust that what it says defines our country.

So far we have managed to find some relatively close ground. I admit that there are ambiguities in the constitution, and that the Supreme Court is charged with the task of clearing up these gray areas. Where we do not quite meet as of yet is the role in which precedent should play in the constitution. In other words, starre decisis has yet to be conceded as anything other than a fancy Latin term meaning that I'm wrong and those that disagree with me are correct.

The site you reference defines it as follows:

I would say that Supreme Court justices are most certainly legitimate authorities on the subject of constitutional law.



It is pointless to argue about the legality of the item in question, and in fact it's useful to refrain from arguing about the legality of the issue. For example, the Supreme Court decision awarding the presidency to George Bush in 2000 has been criticized as one of the worst decisions in the history of the court, but it was for the best that we accepted its legality and moved on.

But that doesn't stop us from debating whether they were right or wrong. I think they were wrong, and I'm happy to discuss my opinion, but I'm not going to march up the steps of the Supreme Court demanding that they reverse their decision.

Besides, it was a 5-4 decision. A theologian with a sense of humor once asked "What is absolute truth?" and answered with "A 5-4 decision in the Supreme Court."

Indeed, you have already conceded that point on numerous occasions, whereas I have not.

That's the problem. See, if you read further down in that link I posted, you'll note that the definition of "authority" is quite subjective. In philosophical debates (the topic I am most comfortable with) you have to obtain concessions for every premise of your original argument before you can continue to finally gain enough concessions to satisfy the requirements that your conclusion requires. In this instance, I am not willing to grant the Supreme Court with a priori knowledge of the constitution.

Since I have not conceded the "authority" that the opinion of the Supreme Court Justices as authorities are actually representative of the constitution, then you have to convincingly argue your case until such time as it is conceded. This does not mean that their rulings are not legally valid because we are not debating the validity of law. We are debating the validity of starre decisis as regards the law.

You can, of course, refuse to regard my refusal to concede this particular point and bow out of the debate. The problem is that I have already used your own rebuttal as regards the judicial branch and applied it to the executive. And if that's not enough, we can continue on with the legislative and grant them the same a priori status that you have conceded to the judiciary.



Indeed! I am not arguing the legality of starre decisis, but rather whether it should be legal. If I can convince you that it should not be legal, then it still isn't going to change the legality of starre decisis. But at least it was an interesting conversation no matter the outcome.

I think I'll take the latter option of walking away. As I said earlier, it's pointless trying to discuss anything with Dr. Irwin Corey.

Oyaji let me get this straight. First you say that the Constitution is so understandable that someone with a junior high school reading level can understand it. If this is correct then perhaps Bush should be looking around for a Doogie Howser of the legal profession to fill the next U. S. Supreme Court vacancy. I would suggest that reading and understanding the complexities of Constitutional law are different matters. Calling words is one thing, undestanding meaning is yet another.

Then you say—in the same post—that the job of the Court is to “explain” the Constitution or “canvas.” If it is as easy as you said in your first statement, then why do we even need courts to explain it—period?

Then you say that the Constitution contains “ambiguities.”

I will suggest that you are retreating, contradicting yourself and possibly confusing the issues to “win,” at least in your understanding, a debate.

1. Are Constitutional Law and Constitutional Debate something that can be approached independently or is the principle of stare decisis so intertwined in these disciplines that they cannot be separated from the text of the Constitution itself? Please explain answer.

The question for debate, as I envisioned it, had to do with reality, that is, whether starre decisis and the Constitution are so intertwined that precedent cases must be studied along with the text of the document to make any sense of the discipline. You are turning the debate into a verbal chess match with all the sophistry one can muster.



Conceding the debate would not be the end of the would now would it?

Yesterday you said you wouldn’t concede Supreme justices know more about constitutional law than you do.



Today, however, you admit you are not an authority on Constitutional law. Another contradiction?




From Article Submitted by Oyaji



Oyaji, you appear to be the one with no "legitimate authority."



Authority of Justices duly appointed to the Supreme Court does not hinge on your conceding that authority. Further, the validity of starre decisis is grounded in reality and confirmed by a long history of practice. In fact, starre decisis has has its roots in English common law. It is much like process etched in the marble of history.



http://www.blupete.com/Literature/Essays/BluePete/LawCom.htm

Whether you like it or not is irrelevant. Erasmussimo doesn’t like the precedent set by the court in placing Bush in office nor do I. I don’t like the precedent for capital punishment being reinstated by Gregg v. Georgia. Our objections are no more important than yours. As you put it, the rulings are “legally valid.”



While you are pointing the finger at Erasmussimo you should remember to take debates seriously rather than turn them into a verbal fencing match.

Gregg v. Georgia is precedent for the time being. I don’t like it, but

It's hard to argue with everything you wrote. Unfortunately, as I explained to Erasmussimo, the legality of the law is not being debated. It is the validity that is being debated.

Surely we can debate things such as the Patriot act without resorting to arguments which basically point out that the law is the law, and there is no debating the law.

We can debate anything.

Furthermore, citing precedent in a debate which questions the validity of precedent as regards the law is a fallacy known as petitio principii.

http://www.nizkor.org/features/fallacies/b...e-question.html

In other words, debating precedent by citing precedent is fallacious. If I concede your point due to your argument, then I am conceding due to the premises, rather than the conclusion that it is built upon.

My intention in starting this thread was to explore the legalities of starre decisis. Actually, it is as much a process as a determining factor in deciding future cases.

I have no problem debating the Patriot Act in any context, but what's more important is the process of deciding whether parts of that act are lawful, by building on previously decided cases. Starre decisis is time-honored method. There is absolutely no way one can divorce case law, which--as I mentioned--dates back to England, from the document itself. Whether any of us like it or not, is irrelevant--it's reality.

Even junior high school students are capable of identifying ambiguous statements when they run across them.



And I would suggest that you go back and think about your rebuttal a little better than this because your argument necessitates junior high school students who can't comprehend the meaning of an ambiguous statement.




Ahhh! Then I concede that starre decisis is legal reality.

Better?



Well so far nobody has managed an argument along those lines, but as you say, you are interested in reality so I'm confused as to why you started the debate. Surely you understood that there could be at least two possible conclusions, and reality being only one of them.



It's called a debate. And yes, debate is a verbal chess match. Logic sets the rules, and debate is the name of the sport. If you can't hang, then don't blame me.

Here you go again. First you argue that junior high (actually middle schools are now the rule) "are capable of ientifying ambiguous statements." Then you suggest my argument is based on them not being able "comprehend the meaning of an ambiguous statement." In reality we know that some middle school students can comprehend ambiguous statements and some can't. From spending more than 30 year in public education, I would suggest from observation, that even some who can won't. The argument, however, isn't about what middle school kids can or cannot do, but whether case law and the text of the document are so intertwined that they cannot, in practice (reality) after many centuries be separated.



Thanks. I appreciate that.



Actually, the reality of the two being intertwined has been my argument since it started on the other thread. I realize that there may be even more than two takes, but I don't think a disconnect from reality in favor of "logic" accomplishes much.



I must have fallen off a turnip truck yesterday. I really didn't know what debate meant. Thanks for explaining it. Seriously, as was discussed on another thread recently, debate has different meanings and there is rarely if ever a clear winner. EDITED TO ADD: If you must have a winner, I can only look at the lack of support by other posters on this thread for your position and conclude ... "Logic" is part of the equation, but not everything that happens, be it in life, in Washington and certainly not in the Texas state legislature, is logical. So, at times it is as necessary to present well researched and documented materials to gain credibility as it is to approach an often illogical world from a logical position. While you may be long on "logic," you are short on corroborating any statement you make.

I'm sorry, but I fail to see the inconsistency.



As a teacher, would you prefer me to amend my statement so that it would exclude middle school students who can't comprehend the ambiguous text contained within the constitution?



They aren't my problem. However, as you are a teacher, I would imagine that those who won't might be considered less than deserving of a diploma from your admittedly fine institution?

Or am I wrong in assuming that an ability to read and comprehend a text as simple as the Constitution is necessary for a diploma from your school?



"a disconnect from reality in favor of logic"? Logic is the study of consistency, while reality is simply that which is.

Are you arguing that logic/consistency doesn't apply to reality?



I disagree. There are very clear winners and losers. The winners are those who have invested their time in a debate only to lose, while the losers are those who have invested their time in a debate and won.

Confused? Let's consider the man who knows everything, but has deigned to debate a particular take on a particular issue. If he learns something, then who has won? And much more tragically, who has lost?

Surely as a teacher you know the answer to this. The man who learned something is the winner, while the man who taught something has learned nothing.

Whether anybody sides with me is completely irrelevant. In fact, to place any emphasis on that at all is a logical fallacy called argumentum ad populum.

http://philosophy.lander.edu/logic/popular.html

I'll admit that my debating style might appear rather strange, and maybe even irritating to some, but I do corroborate many of my points by either posting links to the constitution, or to places which explain the logical fallacies that are committed.

For me, the argument is what is important. Not whether or not it appears silly, or even ridiculous, but whether it can be shown to be silly or ridiculous.

As for the reality of politics, the reality is that the Supreme Court is charged with carrying out legislation which Congress passes (this includes the constitution), and the executive branch is charged with executing that legislation.

The reality of politics is that it is what it is. The constitution is elegant in that everything that defines our country is contained within those few articles and amendments. Anything not covered in the constitution is not part of what defines our country, thus can be disgarded as irrelevant.

And that includes arguments such as mine which question starre decisis as being part of the Supreme Court's legitimate scope. Reality excludes everything that isn't reality. The reality is that I'm wrong because I am arguing something that isn't reality.

Do we really want to limit constitutional debate to reality? Asking me to corroborate my statements according to case law or how things actually are in the real world is fine if that limitation is what you are willing to accept. As you point out, logic has very little to do with reality, and even less to do with politics.

Now how does this all tie into the debate over whether starre decisis is relevant to the constitution? It's simple. I do not believe that the reality equates with the intent of the constitution, nor does political reality.

In other words, the validity of political reality is being questioned, therefore using reality as a point of argumentation is a fallacy called begging the question.

http://www.drury.edu/ess/Logic/Informal/Be...e_Question.html

Your selection of verbs prejudices and obfuscates the issue. The most common simplification of the specifications of the Constitution is that the judiciary interprets the law.


It is the judiciary's interpretation of the Constitution that defines what is our country. And if the judiciary in its wisdom interprets the Constitution to apply to something like abortion, then that is part of the what defines our country, too.


If you wish to drift off into cloud-cuckoo land, that is your perogative, but I think it pointless to argue about unicorn's horns and dragon's teeth. If you wish to return to reality and offer us logical arguments falling within the compass of reality, then we will have something worthy of discussion.

Readily conceded. In reality, this is quite true. And even our precious constitution grants the Supreme court power over the judiciary which is charged with interpreting the basic framework that makes up our country.

O.J. Simpson is also innocent according to this reality. No debate needed there! Abortion? Also reality! No debate is acceptable because it is already in the books! It's been stamped and approved by the very Judiciary that defines what "America" is, according to your argument.

That is, until it is no longer reality...