So these “dictionaries,” as you call them, are supposed to be some sort of authority of the meaning of language. But if a dictionary says that the word constitutional means " In harmony with, or authorized by, the political constitution," you’re perfectly comfortable in rejecting the idea that the courts are the body charged with being the authority on what the political constitution authorizes, and you’re perfectly free to disregard their view and substitute your own.
Why is the dictionary the authority in its baliwick, but not the courts in theirs?
I see no crime here, not even a misdemeanor. And I think Bricker makes a valid and helpful point, one that I would not like to see repressed. It isn’t all semantics.
Still, the post in the OP was beneath Bricker’s intelligence and ability. Here’s how I might do it.
“Well, technically speaking these aren’t actually Constitutional rights, as courts have already visited this issue and found otherwise. Sure, you can assert moral rights -heck you can even give your opinion about the constitution- but actual legal rights are a separate matter. And methinks that those killed in service to our country also died for rule of law, so that court decisions have at least some moral relevance in this context as well.”
What I tried to do was to do was apply a little empathy, advance a little understanding. Demonstrate how your adversary is correct – then show why it may not really matter. Distinguish between issues where technicalities are important, and carve out the space where they are not.
I’m all for applying professional knowledge – even in MPSIMS (though admittedly I don’t frequent that forum). But posts that smack of special pleading, while often better than the average post here, advance ignorance as much as they fight it. I truly believe that Bricker can do better.
I don’t see where mhendo made any such claim. He/she merely stated that the term “constitutional” has additional meaning beyond that. I can state that something is constitutional, i.e. in harmony with the constitution, while at the same time it is considered unconstitutional by the currently sitting court. You think that we all unanimously believe that the bench are always in harmony with the thing?
Sure, what they say goes, but that doesn’t mean that something can’t be both constitutional and unconstitutional at the same time, based on the various ways that those words are properly used.
LHoD: Let’s separate legal positions into two groups. In one group are positions on which there is binding precedent (e.g. the Supreme Court has clearly said you cannot prosecute me for engaging in sodomy). In another group are positions for which there is no binding precedent (e.g. the Constitution requires states to allow name changes for men as easily as for women).
In the courtroom context, if you stake out a position that is in the first group, and it contradicts binding precedent, it is only “appropriate”–e.g. won’t get you in trouble–if you both acknowledge existing law and have a good faith argument for why the existing law is incorrect or should be changed. I don’t know how that should affect message board propriety, but it is the answer to your question.
Not at all, because I understand that in that context they mean some extra-legal principle entitles them to have the law reformed (e.g. a human right). But when the term “right” is used in a specifically legal context, as when the speaker identifies a particular provision of a legal document from which it arises, then I think a reasonable interpretation is that the word is being given its legal meaning (e.g. a basis for relief in a US court).
I think it depends on the context. They are either saying that the federal law is unenforceable as a matter of US First Amendment jurisprudence, which is false, or they are saying that the federal law conflicts with the speaker’s understanding of the principles embodied by the First Amendment, which is presumably true. But I don’t think it’s unreasonable to understand the speaker to have meant the first sentence when there is no other indicia of the intended meaning.
With no other indicia of the speaker’s intended meaning, is it more likely that the speaker was talking about what a [district] court would do with the law, or about the speaker’s personal idea of the principles underlying the First Amendment?
Ok, but you did assert that “rights that those people fought and died to protect” were involved, which sounds like you are raising Constitutional issues. I agree that Bricker didn’t acknowledge the casualness of your statement. I opine though that clarification of it was appropriate on a board devoted to fighting ignorance. But see my previous post.
Even when the appeal you imagine is made, the party making it will acknowledge that a law passed by Congress enjoys the presumption of Constitutionality, and the party challenging it bears a heavy burden in overcoming that presumption.
And when the issue has already been decided by a lower court (as has at least twice happened here), there is additional persuasive force to that decision. When the issue has been decided by a federal appeals court, then the decision is binding law in that federal circuit, meaning that all federal district courts and state courts within that circuit are constrained to decide future instances of the issue in the same way. When the Supreme Court speaks on the issue, all circuit courts are bound to decide future instances of the issue in the same way.
I was responding to furt’s statement that one should respond only to “what people say, and only what they say, and leave off presuming what people really think.” By furt’s confining logic, **Bricker **was out of line by presuming that I was saying the law was Unconstitutional. I did acknowledge that Bricker’s interpretation was a valid one. My problem with the situation has always been the assholish way **Bricker **inserted himself into the discussion. I feel fairly certain that **robby **and the other participants knew what I meant, and knew that my comments were not taking into account the caselaw and strict legal reasoning that might be appropriate in a courtroom. The discussion up to that point, several pages of it, had been entirely about what people thought the law should be. It was not a discussion of fine legal points until **Bricker **barged in in an attempt to, IMO, make sure we all realized how enormous his dick is. He added nothing to the discussion as it had been proceeding for several pages, but derailed it into a whole new vein and at least a couple of new threads.
Um, weren’t you (DCMS) responding to robby? (I can’t find furt’s posts previous to your OP statement). And again, raising fine legal points is appropriate on a website devoted to fighting ignorance. But, yeah, obliviousness to the context of the remarks demonstrates subpar performance.
Well, sort of. But you’re begging the very question here.
If you offer that argument in a context where it is clear that you are, in fact, disagreeing with previous decisions, and that you believe the Constitution itself to permit segregated schools, then what’s the problem? If, on the other hand, you are making the argument that segregated schools have been found, and are currently held under US law, to be Constitutional, then you would indeed be subject to correction.
That’s why Bricker’s question about authority within particular bailiwicks, asked above and answered quite ably by DMC, is so asinine.
I have never once claimed that there’s anything wrong with a definition that looks specifically to what the current law actually is. In my first post in this thread, i made very clear that i believe this to be an important thing.
My point has simply been that, in addition to this particular use of the term, there is also a more general use of “Constitutional” that does, in fact, refer to a person’s feelings on what ought to be, based on their own reading of the document.
In cases where it is unclear which definition someone is using, i have no problem with asking for clarification. But if it’s clear, from the context of their post, that someone is using Definition B, then it’s disingenuous to respond to them as if they were only using Definition A.
For example, one of the sentences that Bricker referred to as requiring correction in the other thread was this one:
How can you interpret that as anything but a personal belief about the principles enunciated in the Constitution? Hell, he never even used the word “Constitutional.” He simply observed that the law in question was an example of wiping our asses with the Constitution.
Forgive me for being dense, but it looks to me that you–with plenty of caveats–answered my first question (is it appropriate to argue in courts that the law is unconstitutional?) in the affirmative.
If I’m reading you correctly, I’m wondering if you’d similarly answer my second question: if that position could be argued in the courtroom, why on earth is it inappropriate to argue it on a messageboard?
We agree as to the meaning being determined by the context. I’ve not read the other thread, so I don’t have a strong opinion in what the context was. But in the quote you’ve given me, I can’t say I agree with you about there being only one reasonable reading. Writing that an action is so clearly unconstitutional that to take the action is to wipe one’s ass with the document does not suggest the writer is referring his own view of the document’s meaning and is aware that his view has been rejected by the Supreme Court. Instead, it suggests that the writer intends to convey that the actor is flagrantly ignoring the accepted meaning of the document. YMOV, but I have a hard time seeing how you don’t at least see the statement as being fairly susceptible to either reading.
That wasn’t quite the effect of my caveats, actually.
In the GD thread that spawned this one, Kimmy made a point of quoting Justice Stevens’ line in Lawrence v. Texas, the case that overturned Bowers v. Hardwick: “Bowers was wrong the day it was decided.”
And I pointed out in reply that I was certain none of the briefs made that argument. Undoubtedly the arguments made to the court said things like, “Bowers should be overruled because it’s inconsistent with subsequent Equal Protection cases,” or “Bowers should be overturned because the facts relied upon to decide it have been shown to be false.”
In other words, those arguments do not simply assert that the law is unconstitutional – they argue that the court should change its ruling. They do not ignore the existence of the court’s prior ruling, or try to pretend that the rulings don’t exist.
So, no – it’s not appropriate to argue in courts a flat assertion that the law is unconstitutional when there is caselaw to the contrary. It’s appropriate to either distinguish the present set of facts from those decided in the past, in an effort to carve out an exception to the existing caselaw that favors your view, or to point out OTHER caselaw that seems to contradict the findings and argue that the conflict should be resolved in your favor.
It’s not appropriate to argue that the previous courts were simply wrong.
And to continue to your second question, slightly rephrased based on my answer: “Even if it’s not appropriate in court, why wouldn’t it be appropriate on a messageboard, where clearly the standards are much more relaxed?”
I don’t say it’s not appropriate to argue it, but surely it’s equally appropriate for me to point out that such an argument, devoid of any citation to authority, is a gratuitous assertion and may be equally gratuitously denied.
Notice a couple of words you added: “flat” and “simply.” Surely an argument that other caselaw contradicts the findings would involve invoking the constitutional arguments in that other caselaw, right? Such an invocation would essentially say, “Y’all have said before that this law is constitutional, but these other decisions suggest that it’s unconstitutional, and they’re right.”
I never said that you’d go to court and say, “Rule for me because it’s unconstitutional not to!” That would of course be silly: of course any such argument would take into account the precise requirements of the court system. Nevertheless, one could argue that the law is unconstitutional, within the court’s rules.
And so we’re back to the second question: if one can do it in court, why can’t one do it on a messageboard?