Then another legal opinon can be offered. I just don’t get this pitting. Did Bricker lie about something? No. Did Bricker insult someone? No. Did Bricker threaten someone? No. Did Bricker try to add some clarity to a issue so it could possible be discussed more adequately? Yes.
Bricker is not the only lawyer here, so other lawyers chime in as you please when he comments, but don’t see why he needs to be pitted.
Pedantic Asshole.
Actually most of the time when this happens it’s a clarity fail. When Bricker or anyone else offers an unsolicited legal “clarification” of what’s clearly a Constitutional or moral opinion, it carries the connotation that the “clarifier” believes that the current interpretation and precedent is constitutionally or morally correct.
That is because words have different meanings in different contexts. So without a caveat that the hijack about the current state of the law is merely that, a reply to a post clearly saying “I believe that X should be unconstitutional” with “Actually, X has been ruled constitutional by many courts” can only be interpreted as “X has been ruled constitutional, and it is in my opinion right that it is so”, because why respond to a thread about an opinion unless it is with your own opinion?
Bravo.
Agreed. Malcandra wins the thread.
The problem isn’t that Bricker is correcting falsifiable opinions about the Consitution (i.e., statements like “The Fourth Amendment is about the quartering of soldiers” or “Justice Story believed that state courts could not be overruled by federal courts”), it’s that he is asserting, as if it were a decided matter, a theory of Constitutional meaning and judicial operation that is far from universal–perhaps far from even majority–acceptance.
Moreover, he did so in a way that sought to bamboozle a poster with a perfectly reasonable–and conventional–account of Constitutional meaning and it’s separateness from judicial opinions. This is not to say that Bricker has lied or put forth in bad faith a competing appeal; after all, he account is plainly informed by his considerable training and practice. But, as in my original complaint against Bricker in the first thread, and as Guinastasia’s naïve response above illustrates, it does seem that too many non-lawyers here fail to perceive/overlook/forget that sometimes even good Bricker is working an angle.
Wow, are you really as stupid as you would have to be for this to be your interpretation of my post? Did you even read the thing, you dumb fuck?
So far, my reaction is: someone says that X is unconstitutional, and if it’s not clear to me that they were merely suggesting it should be considered unconstitutional in their ideal world, I will say what the prevailing caselaw actually is.
The person in question is then free to say, “Actually, I just meant this is how I think it should be.” And that will solve the issue quite nicely.
It is not at all clear to me why, although I am a big boy who can take criticism for saying something factually correct, other posters, who are actually saying something factually wrong, are such shrinking violets that they must be shielded from my criticism.
Those of us with an overpowering brilliance must learn to be understanding if lesser lights are too modest to confront us.
Bollocks. I’d read that as trying to give them information they may not have. Again – people frequently bring up topics without knowing all the facts. It happens every day. Why is giving them facts a bad thing.
And making assumptions about people’s motives is a sure-fire way to introduce rancor where there needn’t be any. Why not just assume people mean what they say, and only what they say, and leave off the assuming what people really think?
My cat’s breath smells like cat food.
Americans are really fond of dressing up their policy arguments with appeals to the Constitution (or their personal version of it). Since everyone agrees the Constitution is A Good Thing, everyone wants to have the Constitution on their side of the argument.
This gets pretty annoying for anyone who has a sense of what the Constitution actually means as a legal document. But it is especially frustrating if you believe the Constitution is actually very limited, like Scalia (and Bricker), and really does not address 98% of policy issues.
So when you see someone taking an argument that is about what they think is just or wise, and wrapping it the Constitution, there is a strong desire to go all Lebowski on them and point out that this just is not a First Amendment thing, man.
If the gripe is that Bricker is too quick to interpret a should statement as an ought statement, so be it. But just as there’s a context that has to be appreciated in assessing a statement, so too is there a wider context to be appreciated in assessing Bricker’s quickness to smack down the proverbial Walter Sobchecks.
That damn should/ought distinction, I tells ya!
There is a discussion as to what the law is and there is a discussion as to what the law should be. They’re two different discussions, and too often conflated and confused. I think it’s helpful to keep them separate, so I tend to appreciate Bricker’s input along those lines.
None of the dictionaries i’ve found limit the term “constitutional” (in a legal sense) to findings of particular courts. That is, none offer a narrowly legal definition. The O.E.D. for example, after dealing with definitions that involve the body, offers the following:
Even Merriam-Webster’s Dictionary of Law says:
I don’t see either of those definitions as inconsistent with a “should” argument.
For example, taking these definitions, the following two sentences are essentially the same:
**Law X is unconstitutional.
Law X is neither consistent with nor authorized by the constitution of the United States.**
Neither of these statements necessarily requires that the courts themselves agree with me. To take my argument above, regarding “ceremonial deism,” i continue to believe that this concept is “neither consistent with nor authorized by the constitution of the United States,” despite the fact that the Supreme Court disagrees with me. I can recognize the legally-binding nature of their decision without accepting that it was the right decision, and it seems to me that there is no semantic problem with continuing to use the term “unconstitutional” under these conditions.
A serious question:
Let’s suppose someone is arrested and convicted for wearing medals that they did not earn. They appeal the conviction on first amendment grounds, arguing that the law violates the first amendment.
Is this a valid strategy for an appeal? I mean, they might lose, but will it automatically be thrown out on the grounds that of course the law is Constitutional?
As I understand law, that won’t happen: their argument that the law violates the first amendment may well be considered by an appeals court, possibly all the way up to the Supreme Court.
And if I’m correct–if in the highly specific and precise world of the courtroom the argument that the law violates the constitution is appropriate to make–how in the world is it inappropriate to make this argument on a message-board?
Criminey. The complaint is not that Bricker is out there clearing up confusion between what we would like and what the Constitution says. The complaint is that Bricker’s theory of what the Constitution is too cabined, that it contends that nobody has a right under the Constitution unless a court or legislature has said so. To illustrate, Bricker would have gaped with bewilderment at a contemporary of Rosa Parks saying that she had a right to sit wherever she wanted on the Montgomery city busses; after all, courts and legislatures all over the land, including the Supreme Court, had given segregation its imprimatur.
Now, those who agreed with Rosa Parks, even at the time of her civil disobedience, would be very exercised indeed to be told that while she should have the right to do so, she did not in fact have the right to do so, because Plessy v. Ferguson was still good law.
mhendo: Dictionary definitions aside, surely the word constitutional means “allowed under the Constitution according to US law,” if not exclusively, at least in addition to “allowed under the Constitution according to my personal understanding of what the Constitution means.” If I tell you that segregated schools are constitutional, am I not subject to correction?
Eh? Gays should have the right to marry under the Constitution, but do not in fact have that right currently. Have I offended gay rights advocates, myself included?
Do gays and lesbians have a [human] right to get married? When a person says “We Pennsylvania gays have the right to marry a spouse of their choosing,” and you respond, “Oh, I didn’t know Pennsylvania allows that now,” and your interlocutor replies “Not yet,” how perplexed are you? Very? Not at all?
So, when somebody says “This federal restriction on non-commercial, non-defamatory, non-violent, non-obscene speech violates the First Amendment,” federal caselaw holding the other way notwithstanding, do you suspect that the poster is engaging in a little freelance Shepardizing? Or do you think something else is going on?
OK, let’s take a look at what I said, and only what I said:
Notice that I was confining my comments to that one specific poster, and commenting on the arguments he was making to support the law in question. It was not a legal discussion with statutes and precedents. It was clearly an informal discussion and I was clearly responding to his arguments defending the law. At no time did I say “that law in Unconstitutional.” That just wasn’t the type of discussion we were having. I realize that one interpretation of what I said is “that law is Unconstitutional,” but that is not “what I said, and only what I said.” It was Bricker who jumped to conclusions about my statements and barged in with his legal obfuscations.
I would point out, though, that Bricker has gone to great lengths in this thread to make it seem like I came right out and said “that law is Unconstitutional.” For example:
But I never said anything directly about the Constitution, so I’m having a hard time figuring out where the “pretty strongly phrased claim of certainty” came in. Clearly it’s in Bricker’s interest to make it seem like I came right out made a factually incorrect statement about the Constitution, and he merely corrected a factual error. From the responses to this thread defending him, it would seem that he has been partially successful in that vein.