Bricker, you are not a law professor

[Fotheringay-Phipps]

@Bricker

Then it’s easily defeated, isn’t it, by pointing out that you meant “Law X SHOULD BE unconstitutional.” Right?

It’s not always that easy to control the flow of a debate, especially when other people are participating.

People do this (i.e. pretending the issue is X when it’s really Y) all the time and it’s frequently successful.

[Shot_From_Guns]

@Bricker

Then it’s easily defeated, isn’t it, by pointing out that you meant “Law X SHOULD BE unconstitutional.” Right?

Isn’t that what happened, but you insisted on contining to wave your big law pedant dick around?

[Bricker]

@Shot_From_Guns

Isn’t that what happened, but you insisted on contining to wave your big law pedant dick around?

First, thanks for noticing. Usually I just get compliments on that portion of my anatomy from Mrs. Bricker.

Second, no. That’s not what happened. So … um… no thanks for not noticing, I guess.

[Bricker]

@Fotheringay-Phipps

It’s not always that easy to control the flow of a debate, especially when other people are participating.

People do this (i.e. pretending the issue is X when it’s really Y) all the time and it’s frequently successful.

If I have to weigh the attendant harm in letting an ambiguous statement about constitutionality go by without comment (and thus concede the advantage that ambiguity brings to the other side) against the harm of bringing it up and requiring the other participant to more clearly define his terms, even though it may be difficult… frankly, it’s not even close.

If you cannot manage to clarify your terms when called on an ambiguity, then you won’t be very happy participating in GD.

[Shot_From_Guns]

@Bricker

Second, no. That’s not what happened. So … um… no thanks for not noticing, I guess.

I just went back to refresh my memory. Looks like you should have, too.

@Bricker

So what’s your basis for asserting that this law violates the Constitution? Unless the Predsident has appointed you to a federal bench somewhere, I don’t see why we would take your interpretation as the right one, and the actual Congress of the United States and an actual federal district judge’s as the wrong ones.

@mhendo

I recognize what the Stolen Valor law IS, that it was passed by Congress, and that it has been upheld by a federal court.

But this does not preclude an argument that the law itself still violates the principles of freedom of expression enunciated in the Constitution, and the general ideals of free speech that Americans usually claim to hold dear. I believe that it does, and while i recognize that Congress and the federal courts are the ones who determine the law, i am still at liberty (i assume, although with robby around, you never know) to disagree with their judgment on this issue, from a basic standpoint of what i believe constitutes an appropriate level of freedom of expression. [snip]

I’m not arguing that Congress didn’t make the law. I’m not arguing that the federal court didn’t uphold the law’s Constitutionality. Hell, i’m not even arguing that most Americans don’t support the law; for all i know, they do. I’m simply arguing that the law violates my understanding of what the basic principle of freedom of expression is, or should be, about. If there’s no actual fraud involved (in the sense of actual material gain by deception), i don’t think wearing medals should be illegal, and that doing it should, on principle, be protected as freedom of expression.

@Don_t_Call_Me_Shirley

So if I search on your username, I won’t find you ever, anywhere, arguing that a law passed by Congress or a decision by a federal court is in any way bad, or violates the Constitution?

@Bricker

You may safely say, “the ideals of the Constitution should protect this conduct” and be on solid ground. But when you (or anyone) claims that the actual Constitution means X, then we move from a nebulous discussion about what should be to a more defined and rigorous discussion of what is.

@mhendo

Every single argument i’ve been making in this thread, as far as i can remember, has been a “should” argument.

@Bricker

The Supreme Court can indeed say that the Supreme Court was wrong, because they have the ability to overturn their prior decisions; to impose a new meaning of the Constitution on the country as a whole. The Fifth Circuit can say what it likes about Fifth Circuit opinions, as long as there’s no Supreme Court precedent to the contrary. Those are functional statements, in which the meaning of the Constitution is actually changed or clarified.

But when we discuss what the Constitution means here, we have some choices. We can proclaim, as though pronouncing some deep religious conviction, that the Constitution means X, despite the utter absence of any supporting caselaw, and indeed despite the presence of contravening caselaw. That’s fine. I’ll even allow it can be in GD, which is, after all, the place for witnessing.

But witnessing is all it is. It’s more correct, precise, and meaningful to argue that the Constitution SHOULD mean X; you at once acknowledge that the weight of precedent is against you and make clear that you are arguing for a change, not stating an extant rule. When you declare self-righteously that the Constitution means X without such disclaimers, you’re being either obtuse or disingenuous, your little foray into different voices notwithstanding.

You are simply witnessing: offering your unsupported personal views as fact, and inviting others to join your beliefs based on those facts.

@Bricker

When a case of constitutional first impression comes along, it’s absolutely meaningful to offer opinions about what the constitution means. After the federal courts have spoken, it becomes much less meaningful, and much more appropriate to caveat one’s remarks with a “should” instead of a “does.”

Any other method is simply misstating, for rhetorical effect, the present state of caselaw.

So, what we have here is: (a) you being a pedant; (b) other people pointing out what was meant and what everyone but you understood; and (c) you continuing to be a pedant even after it’s been pointed out. So, no, your stupid little games aren’t “easily defeated [snip] by pointing out that you meant ‘Law X SHOULD BE unconstitutional.’”

[Bricker]

@Shot_From_Guns

I just went back to refresh my memory. Looks like you should have, too.

So, what we have here is: (a) you being a pedant; (b) other people pointing out what was meant and what everyone but you understood; and (c) you continuing to be a pedant even after it’s been pointed out. So, no, your stupid little games aren’t “easily defeated [snip] by pointing out that you meant ‘Law X SHOULD BE unconstitutional.’”

No. What we have here is the same discussion that we had in this thread: whether my original correction was justified. Not once in the above do you see me arguing against the “should;” you see me arguing against the proposition that “should” and “is” can be used interchangeably.

[Apex_Rogers]

@Bricker

What the hell?

I’ve said this many times. I no longer practice law, but I am a lawyer. When I practiced, I was a criminal defense attorney, specifically a public defender.

With respect to the thread title, I concede that I am not a law professor.

Sorry, my question was out of line. This is the first I’ve seen you mention that you no longer practice law, if it is common knowledge then so bet it. I’ve seen other dopers raise the question before and have it go unanswered, seemingly ignored amongst your replies (there’s at least one example in this very thread). I guess I don’t read the SDMB enough and just leaped to a conclusion based on what I saw in this thread and a few others of recent memory (sorry no links). Thanks for clearing things up, and I apologize for the tone.

[Fotheringay-Phipps]

@Bricker

If I have to weigh the attendant harm in letting an ambiguous statement about constitutionality go by without comment (and thus concede the advantage that ambiguity brings to the other side) against the harm of bringing it up and requiring the other participant to more clearly define his terms, even though it may be difficult… frankly, it’s not even close.

If you cannot manage to clarify your terms when called on an ambiguity, then you won’t be very happy participating in GD.

You are presupposing that elucidator’s claim (that it’s not about pedantry but about maneuvering for advantage) is untrue. In that context what you say is valid. But that’s not how you responded to elucidator.

To him you said that even as a tactical maneuver it could be defeated by pointing out etc. And that’s where I disagree with you.

For a person arguing in good faith, clearing up ambiguities is a Good Thing. For a person maneuvering for advantage, pretending that one’s opponent is discussing X when he’s really discussing Y is a bad thing.

[Note that I’m not specifically agreeing with elucidator that you’re being clever with these posts, although it may well be true - see my first post to this thread. My point is that your rejoinder is not valid. What you need to do is just say "no, I’m not and leave it at that.]

[Shot_From_Guns]

@Bricker

No. What we have here is the same discussion that we had in this thread: whether my original correction was justified. Not once in the above do you see me arguing against the “should;” you see me arguing against the proposition that “should” and “is” can be used interchangeably.

Funny, because I see it as you continuing to hijack the thread with what should have been a two-second correction and turning it into all about you. But, of course, if you understood that, this thread wouldn’t have been necessary in the first place.

You yourself said that all that would be needed to end the discussion was for the person to say that of course they meant that. Several people did–not in so many words, but the jist of their posts was, “We don’t care about the legal distinction–we’re talking about our personal interpretations.” But you just couldn’t let it go. Ergo, you were wrong when you said your silly games could be ended in such a way.

[Bricker]

@Shot_From_Guns

Funny, because I see it as you continuing to hijack the thread with what should have been a two-second correction and turning it into all about you. But, of course, if you understood that, this thread wouldn’t have been necessary in the first place.

You yourself said that all that would be needed to end the discussion was for the person to say that of course they meant that. Several people did–not in so many words, but the jist of their posts was, “We don’t care about the legal distinction–we’re talking about our personal interpretations.” But you just couldn’t let it go. Ergo, you were wrong when you said your silly games could be ended in such a way.

There is a difference between:

(A) “I’m talking about my personal interpretation, and it’s just as valid to continue that ambiguity…”

and

(B) “I’m talking about my personal interpretation, and now let’s get back to what my personal interpretation is.”

The discussion didn’t end with pronouncement (A) – indeed, it’s continued here. The discussion will certainly end with pronouncement (B). In fact, it will end pretty quickly, because if all we’re discussing is our personal, individual “experiences” of what the Constitution means to us, there will be very little further discussion possible.

Indeed, riddle me this: what sort of argument might be brought to bear against such a proclamation? Imagine:

“The Constitution forbids abortion, because unborn children have a Fourteenth Amendment Due Process right to life!”

“No, they don’t. There’s no case law, no statute, no single court decision that comes even close to saying that the unborn have–”

“I was speaking of my personal interpretation.”

“Oh. Well, good luck with that, then.”

[Fotheringay-Phipps]

@Bricker

In fact, it will end pretty quickly, because if all we’re discussing is our personal, individual “experiences” of what the Constitution means to us, there will be very little further discussion possible.

If you don’t think meaningful discussion of how the constitutional principles should be interpereted is possible, that’s part of your problem right there.

A lot of other people would differ with you on that. In fact I’m pretty sure I’ve actually seen such discussions take place, and at great length.

[CandidGamera]

@Bricker

No. What we have here is the same discussion that we had in this thread: whether my original correction was justified. Not once in the above do you see me arguing against the “should;” you see me arguing against the proposition that “should” and “is” can be used interchangeably.

But you’re also arguing for the proposition that ‘is’ and ‘has been ruled to be’ can be used interchangeably, or that when the statement is ambiguous, it should be interpreted that way - and the common usage does not support that position.

You say ‘should’ and ‘is’ cannot be used interchangeably when speaking of constitutionality, but nearly everybody does it that way. When talking about language and usage, prescriptivists can yell until they’re blue in the face, but the popular usage is going to steamroll them every time and make them look like shrill, out of touch, fuddy-duddies.

[RedFury]

@Fotheringay-Phipps

If you don’t think meaningful discussion of how the constitutional principles should be interpereted is possible, that’s part of your problem right there.

A lot of other people would differ with you on that. In fact I’m pretty sure I’ve actually seen such discussions take place, and at great length.

Don’t quote me on this as it is hearsay, but I believe Bricker went to Law School in Honduras where the Constitution is indeed, written in stone.

As I said, the former is not a fact, but it would explain a lot…

[CandidGamera]

@Bricker

Which brings us all the way back to the horrible insulting observation I hurled to start this hugfest: you are not a Supreme Court justice. You’re not on the federal bench. Judges are indeed empowered to create binding precedent, and overturn earlier precedent. Even then, the lawyers that ask them to do this don’t march into court and say, “Overturn this prior decision because the Constitution doesn’t really mean that.”

How did the argument in Brown v. Board of Education differ from that in Plessy, then, to justify overturning an infallible Supreme Court decision?

[Bricker]

@CandidGamera

How did the argument in Brown v. Board of Education differ from that in Plessy, then, to justify overturning an infallible Supreme Court decision?

As I understand it, it went something like this:

MR CJ WARREN: …and each side will then have a further five minutes to respond. So, let’s begin. Mr. Marshall?

THURGOOD MARSHALL: May it please the Court. As you know from our briefs, we are before this honorable court today asking that Plessy v. Ferguson be overturned. It is unconstitutional. Thank you.

(silence)

WARREN: … Mr. Marshall?

MARSHALL: Yes, Your Honor?

WARREN: Please continue.

MARSHALL: I’m done, Your Honor. Plessy v. Ferguson is unconstitutional. Anyone can see that.

MR J FRANKFURTER: Counsel, I think I’m not out of line to suggest we’d all like to hear your reasons.

MARSHALL (shocked): But I’m speaking of my personal experience of the constitution!

WARREN: (glances at colleagues) Ah! Well, then, say no more, sir. Good point, indeed. I hardly think we even need to hear from your opponent.

[Duke]

Bricker, can we get to the point here? I think everyone has been dancing around it, but let’s cut to the chase: When you’re in a legal setting, i.e. in a courtroom or in a legal debate or class, you should insist on strict meaning of legal terms. Outside of a legal setting, i.e., on a general subject messageboard or in a coffee shop or cocktail lounge, you’ve got to allow a certain leeway in terminology.

Put it this way: I’m a fundraising professional/teacher. I teach my students, and use in my work every day, specific meanings for the words “pledge” or “donor.” What if I started insisting in other avenues that people were misusing the term “Pledge of Allegiance” because the words contained are meant to be spoken, not written? What if I insisted, also, that blood donors should receive a receipt for their blood donations, because that’s what makes a donation legal under IRS rules? And what if I spent page after page insisting that my version of what those words meant was correct, not just in the context of my own work, but in everyone’s work, and belittling those who used them in the “wrong” way? I would think, in my uninformed opinion, that most people would be thinking I was acting like a right ass about it.

[Bricker]

@Duke

And what if I spent page after page insisting that my version of what those words meant was correct, not just in the context of my own work, but in everyone’s work, and belittling those who used them in the “wrong” way? I would think, in my uninformed opinion, that most people would be thinking I was acting like a right ass about it.

But this misses the point. In a general discussion, I have no problem with the ambiguity. But this was in the context of a very specific debate. We were talking about a guy who was charged with a crime for the act of wearing military medals he had not earned, on a Marine dress uniform when he had never been a member of any armed service. Some people in the thread applauded the idea that he wouold get some sort of criminal penalty, and others insisted that it was unconstitutional to charge him with a crime, because the First Amendment protects a right to wear medals even if you didn’t win them and wear a U.S. Marine uniform even if you’re not a U.S. Marine.

THAT was the conversation. It doesn’t match your “pledge” or “blood donor” analogies very well, does it?

[Duke]

@Bricker

Some people in the thread applauded the idea that he wouold get some sort of criminal penalty, and others insisted that it was unconstitutional to charge him with a crime, because the First Amendment protects a right to wear medals even if you didn’t win them and wear a U.S. Marine uniform even if you’re not a U.S. Marine.

THAT was the conversation. It doesn’t match your “pledge” or “blood donor” analogies very well, does it?

No, others were arguing that it in their opinion it was unconstitutional. That is not a legal opinion, that is a personal opinion. You and I might have different agreements about what, say, the 2nd Amendment argues. That, like it or not, is an opinion. Again, the word “opinion” has a very different legal definition than in conversational definition.

[Don_t_Call_Me_Shirley]

@Bricker

But this misses the point. In a general discussion, I have no problem with the ambiguity. But this was in the context of a very specific debate. We were talking about a guy who was charged with a crime for the act of wearing military medals he had not earned, on a Marine dress uniform when he had never been a member of any armed service. Some people in the thread applauded the idea that he wouold get some sort of criminal penalty, and others insisted that it was unconstitutional to charge him with a crime, because the First Amendment protects a right to wear medals even if you didn’t win them and wear a U.S. Marine uniform even if you’re not a U.S. Marine.

THAT was the conversation. It doesn’t match your “pledge” or “blood donor” analogies very well, does it?

Actually, he’s right on, and you’re missing the point. The point wasn’t about those two specific words, the point was about the settings in which words can have different meanings. Words that have a very narrow meaning in a courtroom setting can have a different meaning in a casual conversation. This was a casual conversation. Now if you could point to some evidence that showed that the usage of the terms in the casual conversation was confusing some of the participants, you might have a point. But everyone was clear. The statutes and supporting case law had already been discussed.

[Hamlet]

I’m not sure why I spent time reading that other thread and this one. Seems like the OP’s admonishment that Bricker could be less a condescending jerk in making his “arguments” is on solid ground, especially considering Bricker has not always made the “should/is” distinction in his own posting. Seems a bit snowcapped elevation of Earth for a brae of Talpidae.