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RXP
11-14-2004, 03:38 AM
Question, are there some fundamental rights guaranteed by the constitution that CANNOT be ammended even when the requisisite formalities (like 2/3rds of both houses) are met? Like say the right to bare arms (or whatever the right is). Or can every single clause of the constitution be altered? IIRC I read somewhere or heard somewhere that the voting weights of each states cannot under no cirumstances be changed. Is this true?

I'm googling it but it's taking ages. So if anyone knows much appreciated.

Edit found: " Furthermore, the Constitution precludes Congress from depriving a state of equal representation in the Senate (vide infra) without its consent."

Little_Miss_1565
11-14-2004, 11:07 AM
You've answered at least part of your question, and even though it's abundantly clear that I shouldn't be posting anything requiring actual thought until I get better, I was in a Constitutional Law class before I left school to go home.

As it stands, yes anything in the Constitution can be amended, and amendments themselves can be repealed. Well, unless it explicitly says somewhere that something cannot be amended in the original text, of which places I can't think of right now so I don't even know if that exists. The Constitution is a funny document like that. And actually the Constitution is sort of amended every day in the Supreme Court, if you consider interpretation to be a form of amendment (which I do).

But the idea is that there are enough safeguards and checks and balances and things like that to prevent really important things like free speech to be rescinded or amended or abridged, since the people are granted sovereignty over the government in that area.

Trouble is, though, if something like that went through, the courts can't deem part of the Constitution unconstitutional.

RXP
11-14-2004, 12:43 PM
Cheers for the responce. As I learnt later anything can indeed be amended. I'm not quite sure why my american jurisprudence professor said some things can't I'll have to ask him about that.

I find the power of your Supreme Court to be quite amazing though. Our courts can't strike down legislation. The closest they come is to issue a declaration of incompatabilty under the Human Rights ACt 1998

Little_Miss_1565
11-14-2004, 09:38 PM
The whole judicial review thing is up for a bit of debate, as it's still not cut and dry that Chief Justice Marshall indeed had the right to affirm that power, but it's hard to imagine our governmental process without it.

Heh, our Court would be more likely to strike down the Human Rights Act as incompatible. Though your judges wear fluffly wigs and actually participate in the legislative process, which I would consider a conflict of interest. :)

RXP
11-15-2004, 12:21 AM
Seperation of powers have been broken in our country for hundreds of years with the Lord Chancellors office which only got reformed recently.

Little_Miss_1565
11-15-2004, 11:34 AM
Well...*technically* American government doesn't have a separation of powers...rather, they're set with parts of the other branches' powers in order to check eachother. Like how the President can veto legislation, but the legislature can override the veto with a 2/3rds vote, and that the judiciary can deem a law unconstitutional and therefore void, but only the executive can enforce it (see also: President Jackson). Trouble is, they're overlapping an awful lot these days (see also: President Bush). How does one navigate this messy business.

Jasonstanton83
11-16-2004, 04:52 PM
Such as the judicial hearings about to take place on the disgusting patriot act?
This act was bought about in the wrong circumstances and allows the wrong rights to the wrong people.

Being a cynic i cant see the judges stopping this act.

jimmyjimjimz
11-17-2004, 11:03 AM
Question, are there some fundamental rights guaranteed by the constitution that CANNOT be ammended even when the requisisite formalities (like 2/3rds of both houses) are met? Like say the right to bare arms (or whatever the right is). Or can every single clause of the constitution be altered? IIRC I read somewhere or heard somewhere that the voting weights of each states cannot under no cirumstances be changed. Is this true?

I'm googling it but it's taking ages. So if anyone knows much appreciated.

Edit found: " Furthermore, the Constitution precludes Congress from depriving a state of equal representation in the Senate (vide infra) without its consent."
I remember learning in school that there's certian parts of the constitution that they can't change. I'm not sure which parts, though. I think it's the first 10 ammendments. I know the first 10 is the bill of rights.

Little_Miss_1565
11-17-2004, 01:24 PM
I remember learning in school that there's certian parts of the constitution that they can't change. I'm not sure which parts, though. I think it's the first 10 ammendments. I know the first 10 is the bill of rights.

Not true...all the amendments can be changed or repealed. The Bill of Rights "can't" because they've become so entrenched in our definition of what it is to be an American--but, technically, they are just like any other amendment.

malumboman
11-17-2004, 01:25 PM
we cannot change constitution because it is gods will that it is there

RXP
11-17-2004, 01:28 PM
I told my yank professor that he was wrong and he said no Article 5 can't be changed. Gotta look some shit up. 1565, care to give me a nice little snippet quote?

Little_Miss_1565
11-17-2004, 02:09 PM
I told my yank professor that he was wrong and he said no Article 5 can't be changed. Gotta look some shit up. 1565, care to give me a nice little snippet quote?

Well, I suppose you can't amend the amendment process...that does make sense. But that's a bit of a truism, isn't it? To amend the constitution to abridge or expand how the constitution can be amended would create a bit of a paradox. It doesn't say explicitly anywhere, including Article V, that it cannot be amended; rather, it simply comes with the territory. Doesn't it?

RXP
11-20-2004, 01:07 AM
Ah sounds a lot like Hart's "rule of recognition" from Jurisprudence (legal philosphy) i.e. something that is 'pre-legal' or 'meta legal'. It just simply comes from no where. It's just accepted? Like whatever the Queen in Parliament enacts is law. She has no legal authority for that it's just accepted?

Hmm paradoxes are always awesome to put into essays an argue away. I'll have to do some more research into it.

Not Ozymandias
11-21-2004, 07:48 PM
the right to bare arms
Those fascist swine will get my short-sleeved shirts when they pry them out of my cold, dead hands!!

Little_Miss_1565
11-22-2004, 09:23 AM
Ohhh snap!

acgc2002
11-22-2004, 09:53 AM
As several constitutions, we have what we call "cláusulas pétreas", which means... stony clauses in immediate translation from portuguese.
Some rules, like the article 60 of the Brazilian Constitution cannot be altered at all, this is to guarantee some rights... and some estability of the system.
So, I am sure the USA also has those clauses; I don´t know the name and the translation in English, but it is just a fact they cannot be altered at all.
:)

The Cheshire Cat
11-22-2004, 09:59 AM
You can amend any part of the constitution, you just can't remove anything. If you want to repeal an amendment you have to make another amendment stating that the earlier amendment is repealed (Probably to keep historical record). They did exactly that for article 18 (Prohibition).

The first 10 amendments aren't special in any way, they were just all proposed at the same time and ended up being ratified at the same time, and were added pretty soon after the establishment of the original constitution.

In fact, there were orignally twelve amendments proposed with the first 10, but one didn't pass and the other didn't pass until much later (27th amendment - the one that says senators and reprasentatives won't get pay raises that they propose and approve until after re-election). If the first 10 were in fact somehow special, then the 27th amendment would be subject to the same stipulations.

Little_Miss_1565
11-22-2004, 10:19 AM
As several constitutions, we have what we call "cláusulas pétreas", which means... stony clauses in immediate translation from portuguese.
Some rules, like the article 60 of the Brazilian Constitution cannot be altered at all, this is to guarantee some rights... and some estability of the system.
So, I am sure the USA also has those clauses; I don´t know the name and the translation in English, but it is just a fact they cannot be altered at all.
:)

Not so. Our Constitution has nothing written in stone--it is all amendable as stipulated in the document. It is a guideline for the government that is purposely vague in many, many parts of it.

acgc2002
11-22-2004, 10:23 AM
Not so. Our Constitution has nothing written in stone--it is all amendable as stipulated in the document. It is a guideline for the government that is purposely vague in many, many parts of it.

Yes, you can amend any part of the constitution, but some paragraphs and some articles can´t change the meaning. They can´t change...
that is what is meant by "hard clauses", they exist and no one can alter them, you can include more things or whatever, but the statement that is published there cannot change.
You don´t have those things?????

Little_Miss_1565
11-22-2004, 12:05 PM
Yes, you can amend any part of the constitution, but some paragraphs and some articles can´t change the meaning. They can´t change...
that is what is meant by "hard clauses", they exist and no one can alter them, you can include more things or whatever, but the statement that is published there cannot change.
You don´t have those things?????

No, we don't. The meaning of any clause is defined by legal precedent--that is, what the Supreme Court has said it means when it's been tested in litigation. Howevever, that precedent is only tradition--it could potentially be thrown to the wind in favor of another interpretation.

acgc2002
11-22-2004, 12:10 PM
We have different principles. That is why the USA has only 1 constitution up to now, and we in Brazil are in the 8th.
To make those changes you said... if it affected any of the "hard clauses",m a new constitution has to be written.
You can modify stuff... except the art. 60, for instance, and some pieces of article 5.
If you do that, you have to revogate (?) and bring a new Constitution.

josephinebrooks
02-07-2005, 01:48 PM
Article 1, Section 9, Clause 1 allowing for the importation of slaves up to 1808 and Article VII concerning how the constitution will be ratified. Both these things have already come to pass. In contract terms they are the executed parts of the contract and can't be undone retroactively.

leo3375
02-07-2005, 03:46 PM
There are three rumored amendments to the US Constitution in the works:

1. Define marriage as between one man and one woman only. No same-sex marriages allowed. Any existing same-sex marriages would be null and void.

2. The so-called "Arnold Amendment." This would give non-native-born US citizens the ability to run for US President. The reason the Constitution only allows native-born citizens to run is because history is rife with foreign-born leaders fucking things up.

3. Eliminate the presidential term limits. Right now, a president can only serve two terms (this was enacted after the death of Franklin D. Roosevelt, who died at the beginning of his fourth term). So guess who could run and stay in office as long as he damn well pleased?

For an amendment to be ratified, at least 34 states must approve of it. This can be a very daunting task.

wheelchairman
02-07-2005, 04:25 PM
Wow, if ever there was a good example of class warfare being waged against the people, it would be in these 3 amendments.

Little_Miss_1565
02-08-2005, 08:43 PM
There's probably an amendment in committee somewhere to try and bring down the cost of a monthly Netflix membership. It IS interstate commerce, after all!

Thousands of amendments are proposed every year. And though those three amendments pander directly to some of the most frighteningly gross strata of society, I think we have Cheney's gay daughter to thank for the fact that the White House seems to be mostly content in letting the states decide these issues for themselves, which is how it should be.

lost_nvrfound
02-09-2005, 05:59 PM
we cannot change constitution because it is gods will that it is there

and u kno its god's will, how?... thats blasphemy... though the fact that its blasphemy doesn't really matter to me because i'm an athiest... but if he truly exists, i doubt he'd want u saying wut his will is... now if he told u personally, that's a whole different story... but i really hate how society just decides that certain things are god's will... if he in fact does exist, then i doubt he controls evrything that happens, he probably just put us here to see what would happen

i apologize for this seemingly assholic remark, but i really am tired of this "its god's will" crap

Dead Cheerleader
02-09-2005, 06:53 PM
Rewriting the constitution would be a disaster. It shouldn't even be amended. The thought of politicians today "correcting" people like Alexander Hamilton and Benjamin Franklin just kind of makes me uneasy.

sKratch
02-09-2005, 07:10 PM
Hah yeah that's so scary. Fucking women can vote now... and blacks are no longer a commodity. What's up with that?

Dead Cheerleader
02-09-2005, 09:24 PM
Yeah yeah I didn't feel like stating the obvious but those are two things that make a lot of sense. But banning gay marriage in the fucking constitution does not make sense to me. I think we're doing fine without such changes.

sKratch
02-10-2005, 01:22 PM
So because changes exist that would be bad, we should not allow constitutional amendments? There've been far worse things proposed (and allowed) than banning gay marriage.

wheelchairman
02-10-2005, 01:26 PM
Hah yeah that's so scary. Fucking women can vote now... and blacks are no longer a commodity. What's up with that?
Yeah, this goddamn ZOG (Zionist-Occupied Government) really pisses me off with it's backwards ideas.

sKratch
02-10-2005, 04:32 PM
Mmm ZOG sounds so harsh and seems to have inherent negative connotation. I love it.

wheelchairman
02-10-2005, 05:25 PM
And it sings well too, I'm sure you've seen American History X, well that one song that plays through half of it includes the word ZOG.

To the tune of John Brown's Body
My Eyes have seen the glory
of the trampling at the zoo
We washed ourselves in Nigger's blood
and all the mongrels too
taking down the ZOG-machine
jew by jew by jew
the white man marches on

sKratch
02-10-2005, 06:02 PM
I haven't seen that movie in a really long time and I only saw it once. I don't recall.

Little_Miss_1565
02-10-2005, 07:54 PM
Yeah yeah I didn't feel like stating the obvious but those are two things that make a lot of sense. But banning gay marriage in the fucking constitution does not make sense to me. I think we're doing fine without such changes.

Guys, come on. The Constitution was never meant to be a be-all-end-all document. Amendments, therefore, are a very necessary process. And do you know how hard it is to get an amendment to pass? Pretty fucking hard. The gay marriage amendment has already been shot down once in Congress, and I really don't think it's going to end up going through. That doesn't mean we should stop keeping a close eye on Washington and making sure that our representatives know we're against such an amendment.

But honestly, marriage is up to the states. The federal government is treading on legal ground that doesn't even belong to them, relying more on the idea of "There ought to be a law!" rather than what the Constitution actually says. Arrgh.

Mota Boy
02-11-2005, 12:28 PM
However, if you come out against the government's right to ban marriage based upon the fact that it's not laid out in the Constitution, you have to also come out against the Supreme Court's ruling on the "right to privacy", which includes legalizing abortion, the rulings on equality of blacks, and myriad other laws.

Constiutional amendments are extremely difficult to pass. I'd be very surprised if any of those ever made it to the President's desk.

RXP
02-14-2005, 01:35 AM
Since when have the supreme court actually decided a case on wha the constitution says? A decision is reached on society's collective will and a justification based on the constitution is given. It's the judicial discreation at this level of litigation that decides a matter, not the constigaytion.

sKratch
02-14-2005, 07:14 AM
And when he lifts it feels like cumming.

Little_Miss_1565
02-15-2005, 04:54 AM
Since when have the supreme court actually decided a case on wha the constitution says? A decision is reached on society's collective will and a justification based on the constitution is given. It's the judicial discreation at this level of litigation that decides a matter, not the constigaytion.

...have you ever read a Supreme Court decision? I'll allow that judicial discretion plays some role, but all argument must be based in the Constitution, at least cursorily.

Mota--But the states' rights to set marriage laws are pretty much there in the Constitution already. The Supreme Court found the right to privacy implied within the Bill of Rights (and the Bill of Rights is within the central government's jurisdiction), and since Madison never intended the Bill of Rights to be a strict enumeration of our only rights but rather a guideline to what the government cannot intrude upon I don't think that my belief against the government's intrusion into marriage guidelines is mutally exclusive from protecting the right to privacy.

RXP
02-15-2005, 04:57 AM
...have you ever read a Supreme Court decision? I'll allow that judicial discretion plays some role, but all argument must be based in the Constitution, at least cursorily.



Every single appelate court decision is based on the 'established' 'law'. Please don't be fooled. At appelate level judicial discreation is at it's greatest and they act as legislators.

If your really interested in my point of view I wrote a paper on it which I think is orgasmic if you wanna take a look.

RXP
02-15-2005, 04:59 AM
ps: please say you wanna take a look cause I'm so proud of it and you HAVE to read it.

Little_Miss_1565
02-15-2005, 01:11 PM
I don't want to read your paper because you're wrong. Appellate courts determine the meaning of the law, but not the law itself. No way, no how. It is a check-and-balance on the Legislature, not the Legislature.

RXP
02-15-2005, 02:13 PM
Firstly incorret. Do some reading before you jump to conclusions.

Way to dismiss my argument without seing the evidence, also.

Appealte court determine the law itself in a huge range of cases. Judicial discreation is at the core of appealte litigation and it isn't just me who thinks so a whole range of acamedics, supreme court justcies and law lords agree with me. Heck even renound scholars like H.L.A Hart agree that judicial discreation is a very real fact, although of course he qualifies it by saying it's at the fringe of appelate litigation at the 'open texture' of law where it runs out (he is wrong, however. the American legal realists show that)

The only way that judges don't legislate is Ronald Dworkin's inclusion of moral principles as sources of law and that the law never runs out. Anyone with a brain will tell you that there is no way in hell that the law can decide for every single set of cirumstances that could happen. Indeed Dworkin has to invent a super human judge to do be able to find law for every situation. But superhuman judges don't exist fucker.

But including morality as part of the law is stupid and goes against positivism. Indeed, it's a desperate attempt to cling to the seperation of powers. Therefore when a judge decides a case society's morality is a valid source of law. Which is stupid.

The seperation of powers is a complete joke, and what's more it is NOT needed. Judicial legislating is a necsessary and it's not bad like we've all been taught in class!!!11

Seriously don't even try and argue with me on this I'll easily win.

RXP
02-15-2005, 02:17 PM
Your reply made me realise how stupid public law/constitutional law classes are without jurisprudence.

They fool you into thinking incorrectly without seing the evidence. I've read hundreds of judgements (literally, probably more), it's a strange thing how the dissenting judge seems to be interpreting the law yet coming to a different conclusion or how to equally valid but conflicting canons of interpreation can be extracted from the same stature or precedent.

People should read around what they are taught in class and not take it for gospal.

Izie
02-15-2005, 02:39 PM
(Jesus)
RXP, is making some sense here. Actually it's pretty obvious or i must have read it too fast.
For instance over here in Belgium with marriage, it wasn't said that it's between a man and a wife in the laws, since it was pretty fucking obvious that it was between a man and a wife back in the days. No need to point out the obvious. When society changed and gays became accepted it seemed logical to let them marry. It wasn't like: w00t, gays should marry because nothing stops them from marrying in the constitution. It was more like: Let them marry, they are no different. If we would have a lot of bible fundamentalists here, we wouldn't have had same sex marriages either for a while even thought there was nothing in the constitution stopping it.

General/standard interpretation of the same laws change when the will of the people changes, pretty obvious, or am I missing something here?

leo3375
02-15-2005, 04:02 PM
The Supreme Court interprets the Constitution as it applies to the real world. Plessy vs. Ferguson ruled that segregation was acceptable as long as all races were treated equally (in an ethical sense, this is known as exclusive multiculturalism). Brown vs. Board of Education ruled that segregation in schools was unconstitutional and integrated public schools. The most controversial to date is Roe vs. Wade, which ruled that a woman has the right to abort a pregnancy if she so desires. Recent rulings include overturning anti-sodomy laws, citing that what goes on between closed doors between consenting adults is nobody's business, and that the Boy Scouts of America is a private organization that can exclude whomever it wants to.

Little_Miss_1565
02-15-2005, 08:07 PM
RXP, I think you're taking this a bit too seriously, and personally.

Judicial discretion is a fact of the American legal system. If it wasn't, there wouldn't be such a fuss over Bush's court nominees. I'm not trying to argue against that point of yours. What I'm objecting to is your saying that using judicial discretion IS acting as a legislator, which it is not. No judge can tack a rider onto the end of their opinion saying "oh yeah, by the way, since I just said that Joe Smith's medical cannabis club can be legally subjected to the government's drug laws since I have ruled that it does travel in interstate commerce, no one can use medical cannabis." Since they can only deal with the cases brought to them, the process of which can take years, it would be impractical as well as erroneous to say they act as a legislature.

Additionally, being sound of mind, I have questioned the reasons why the structure of the government is the way it is, including why there is a separation of powers. If not for that separation, how would we have a function like judicial review?

RXP
02-16-2005, 12:12 AM
it would be impractical as well as erroneous to say they act as a legislature.


No! They do in a limited field because they have to rule on the facts, although at supreme court level this goes out the window and they do legislate. I'm not arguing that it isn't necessary, that it isn't good but don't be fooled into thinking judges don't legislate. Precedent, while it can be over turned it an equally valid source of law as statute.

I'm not taking anything personally, I just love a good debate.

To argue that some document written hundereds of years ago will have the answer to all of society's problems is stupid. THe judges seek who is right according to their own morality or socities morality, or a bit of both THEN seek the justify their decision with the law.

In doing this they legislate because they make a law that didn't exist before which future cases will rely on.

Little_Miss_1565
02-16-2005, 06:38 AM
As I stated earlier, the Constitution does not contain all the answers. But what is most often brought before the courts is the question of whether or not a law written much more recently than hundreds of years ago fits with the spirit of the document.

But it's not a law that didn't exist before. The law DID exist, because that's how the judge tries to justify his or her decision. The judge puts his or her own spin on it, that's all. That's acting as a judge, not as a legislator.

RXP
02-16-2005, 07:32 AM
The law DID exist, because that's how the judge tries to justify his or her decision

I've already explained this numerous times and will leave it now :-)

sKratch
02-16-2005, 07:36 AM
You're sounding like Linda.

RXP
02-16-2005, 07:39 AM
Linda's my masturbation fantasy.

But I have explained it. It would just go on and on. 1565 refuses to accept that in the majority of appelate decisions the judge legislates in a narrow, confined field. It's not a legislature because they are restricted to the facts before them, nonetheless, they still do legislate.

Little_Miss_1565
02-17-2005, 07:15 AM
But I have explained it. It would just go on and on. 1565 refuses to accept that in the majority of appelate decisions the judge legislates in a narrow, confined field. It's not a legislature because they are restricted to the facts before them, nonetheless, they still do legislate.

You've explained it, but you're still wrong.

I completely agree and have never refuted that the judge legislates in a narrow field. What I disagree with is the idea that the interpretation of the law that the judge hands down is a form of legislation, because it's what the law means, not is, and legislating would be saying what the law is.

Mota Boy
02-17-2005, 11:40 AM
Mota--But the states' rights to set marriage laws are pretty much there in the Constitution already. The Supreme Court found the right to privacy implied within the Bill of Rights (and the Bill of Rights is within the central government's jurisdiction), and since Madison never intended the Bill of Rights to be a strict enumeration of our only rights but rather a guideline to what the government cannot intrude upon I don't think that my belief against the government's intrusion into marriage guidelines is mutally exclusive from protecting the right to privacy.

Yeah, but the Warren Court found it within the "penumbras" of the Bill of Rights, meaning that it's there if you squint hard enough and cock your head to the left. Just to be cantakerous, the Republicans in Congress (I don't think Bush really backs the Amendment all that much) are going about banning gay marriage in perfect adherence to Constitutional guidelines instead of relying on a subjective interpretation of the document.

I just find that, historically, people tend to pick and choose when they're for state's rights. They'll argue for it vociferously when they disagree with federal government policy, but come out against it whenever they support the fed's position.


Seriously don't even try and argue with me on this I'll easily win.
Just like you easily won the seatbelt debate? Seriously dude, you get too involved in otherwise civil discussions far too easily, which doesn't reflect well on your level of maturity. It's especially painful to watch when you're wrong, or at least not nearly as right as you think.

For instance, your point that the Supreme Court reaches a decision based upon "society's collective will" is dead wrong. You're certain that you're talking about America's court system, right?

RXP
02-17-2005, 12:05 PM
For instance, your point that the Supreme Court reaches a decision based upon "society's collective will" is dead wrong. You're certain that you're talking about America's court system, right?

Read all my posts, I didn't mean all judges decide on society's collective will. That's Ronald Dworkin's super human judge, an idoil to aim for. Even he admits that the law isn't always a basis for decisions (well statute, precedent and includes moral principles as the law.

To argue that at appealte level (esp. in the US supreme court) that the judge basis his decision ON the law is just plain wrong. I've given examples, I've given scholars who think the same thing. What more can I do? I know lets look at the case law.

Riggs v. Palmer

Riggs is an American case from the late 19th century. It involved a case where a nephew, Elmer, murdered his uncle to get an inheritance. The legal question revolved around whether Elmer is entitled to the money even though he murdered his uncle because the statute did not specify that murdering someone prohibited you from inheriting. The judges disputed whether the principle that one should not profit from one’s own wrong applied in the case even though it was not expressly part of the statute.

Held: Riggs coudn't inherit. DESPITE THE LAW, the specific STATUTE having NOTHING to say about not being able to profit from your own wrong. THE JUDGES MADE A NEW LAW!

THE ONLY WAY they didn't was to include moral principles as a source of law which is what Dworkin does.

Next case:

Brown v. Board of Education

Don't think I need to tell you the facts of this case. But the 14th was 'interpreted' according to society at the time. No way no how. In Plessy it was 'interpreted' at different way. Interepation? Or legislation? More like the latter.

I could go on and on. The European Court of Justice is another good example, just like the supreme court. So is the House of Lords in England and Wales.

Here's a good quote


For those who are still of the opinion that the court is merely applying the pre-existing law, Llewellyn’s argument that the courts endorse both the principles that “a statute cannot go beyond its text”8 and “to effect its purpose a statute must be implemented beyond its text”9 should make them reconsider.

This is similarly true of precedent, “any precedent can be read strictly or loosely, and either reading is “recognized, legitimate, honourable.”10 The discretion the judge has at their disposal lets them choose which interpretation to follow, which one best justifies the decision. This leads us to the crux of the argument, the core claim of realism that, “in deciding cases, judges respond primarily to the stimulus of the facts of the case, rather than to legal rules and reasons.”11

Paraphrased this states that judges look at the facts then post facto seek the law and in seeking the law they create it because prior to that judgement it was non existent.

To argue otherwise is fucking stupid. It annoys me when people don't read judgements themselves and bark on about things they don't know about. I take the tone I do in arguments because it's fun for me to argue. If you take it personally so be it. But to argue with me on this subject is like to argue with WCM on Marxism or something. It's like arguing with god himself. :cool:

And to say I'm wrong is just plain stupid. You can't base your agument on anything but "omg the judge cited X statute and Y statute". A case is more than the head note. Read the entire case, see the political, economic and social situation behind it. See the jurisprudence. Each case is a peace of legal philiophy and at teh appelate level it's a bit of legislation.

At the lower court, in every day cases when a cliament asks the judge to rule if the defendant has breached an innominate term in his legally binding (offer, acceptance, consideration, intent) then the law is sought then a decision made. But where the law doesn't exist or extend to the law in question, or the law conflicts something extra legal is at work (i.e. at appealte level) to argue otherwise is so wrong. I can't go on anymore. This is my argument. If you want to refute it please do so with a decent argument not that judgements are filled with references to statutes. Because I can give you quotes from renound judges who vehmently insist they legislate (create law at least)


. Justice Benjamin Cardozo who sat on the US Supreme Court said that in the absence of law the judge “must then fashion law for the litigants before him”12 Lord Reid in a speech supposed “we must accept the fact that for better or for worse, Judges do make law”13. Judge Joesph Hutchenson affirms “the vital, motivating impulse for the decision in an intuitive sense of what is right or wrong for that case”14, clearly illustrating that the facts are the primary stimulus.

Further support is found from Judge Chancellor Kent whom Frank cited “I saw where justice lay, and the moral sense dictated the court half the time, I then sat down to search for the authorities…. But I almost always found principles suited to my view of the case”15. These views help one see that the judiciary does, at least in some cases, act without strict guidance from the law as a primary stimulus. However, what they are not saying, as some critics have sensationalised that the law never decides the case. For example, Cardozo also says “apart from in exceptional conditions… the work of deciding cases in accordance with precedents that plainly fit them… is a process of search, comparison and little more”16.

Cardozo clearly reasons, in the majority of cases the law decides the outcome. This is echoed by Supreme Court Justice Oliver Wendell Holmes in The Common Law “that issues of legal liability are to be decided by reference to rules which echo the standards of general application.”17

So please I'd like to see some evidence on why I'm wrong. If I do I'll admit it. BUt I know you can't.

Mota Boy
02-17-2005, 01:44 PM
OK, first of all, your argument at this point relies on specific cases. There have been 167,931,292 court rulings in American history (OK, I pulled that number out of my ass), many of these are bound to fall in line with your argument, but that doesn't mean they all do. If we were to argue this point by only citing specific cases, I'm sure I could dig up thousands that disagree with you.



Read all my posts, I didn't mean all judges decide on society's collective will.

A decision is reached on society's collective will

I just had to do that. I won't hold it against you, though.



To argue that at appealte level (esp. in the US supreme court) that the judge basis his decision ON the law is just plain wrong. I've given examples, I've given scholars who think the same thing. What more can I do? I know lets look at the case law.
To convince me, you'd have to cite extensive reviews or (if possible) a statistical analysis of Court decisions. Citing a handful of cases and a handful of people who share your opinion will still leave me skeptical.



Don't think I need to tell you the facts of this case. But the 14th was 'interpreted' according to society at the time. No way no how. In Plessy it was 'interpreted' at different way. Interepation? Or legislation? More like the latter.

I'm well aware the the justices personalize issues, but does that make it legislation? I'm not so certain about that (but I don't have a clear cut opinion on it). What I do question, however, is that the justices made their decisions based upon society at the time. More than likely, they were products of society, and so, while their opinion somewhat reflected the era in which they grew up, it was not defined by it. The Warren Court, for instance, was incredibly liberal and made many decisions (Roe v. Wade comes to mind) that were unpopular with the majority of the country. Brown was another that, while favored in the North, wasn't exactly the most popular ruling below the Mason-Dixon line.

Another good example is the Court's decision regarding flag burning. It's hugely unpopular, but because the majority of Justices have historically seen it as free speech, burning the American flag is still legal.

Now, it's true that I'm citing random cases also, but I believe a likelier way to explain this discrepancy is to say that the justices have personal opinions that are influenced by their society (as well as their parents, teachesr, drug use, etc.) rather than that they have opinions that respond to society.

What you are insinuating is that the Court works the same way as a legislative body, responding to and en


I take the tone I do in arguments because it's fun for me to argue. If you take it personally so be it. But to argue with me on this subject is like to argue with WCM on Marxism or something. It's like arguing with god himself.
On the whole, it undermines your points, especially when I end up smacking you around.


And to say I'm wrong is just plain stupid.
As stupid as claiming that you're right?

RXP
02-17-2005, 02:04 PM
How are you smaking me around? You have still yet to prove your point on any substantive level. All you do is skirt around the issues without getting into the heart of the decision. You simply don't know what you're talking about. I'm betting you've never read a full case in your life, never read the commentary that goes with an appealte decision in the various law journals or anything of that sought. You are basing your entire view on the macroscopic commentary that emerges from a case.

You've yet to prove anything. I am relying on pragmatic lawyer's experiences. The school of thought under the umbrealla of American Legal Realists were judges and lawyers. They were not acamedics. They believed and proved that this is how the courts work at appealte level. Even the well renound Jurist HLA Hart who's book "the concept of law" is widely aknowledged as THE book on the concept of law agrees that the appealte courts do legislate in some cases. You are basically arguing with every legal scholar out there. They all agree judges legislate, but disagree to extent.

The biggest evidence that the judges legislate and now interpret the law is the quote I've already made:


For those who are still of the opinion that the court is merely applying the pre-existing law, Llewellyn’s argument that the courts endorse both the principles that “a statute cannot go beyond its text”8 and “to effect its purpose a statute must be implemented beyond its text”9 should make them reconsider.

This is similarly true of precedent, “any precedent can be read strictly or loosely, and either reading is “recognized, legitimate, honourable.”10 The discretion the judge has at their disposal lets them choose which interpretation to follow, which one best justifies the decision. This leads us to the crux of the argument, the core claim of realism that, “in deciding cases, judges respond primarily to the stimulus of the facts of the case, rather than to legal rules and reasons.”11

There is NO LAW applying to the case or conflicting law in the great many appealte decisions.


167,931,292 court rulings in American history

What do you not understand about the fact I am talking about appelate decisions. 99% of cases out there are based on law! But it's the higher level where there is NO LAW that applies to the case or CONFLICTING LAW. THE JUDGE HAS TO LEGISLATE. He doens't put spin, he doesn't interpret he decides what the law shoudl be in future cases because of the doctrine of precdent. The US Supreme court is the best example of it.

HE IS DECIDING WHAT THE LAW SHOULD BE. I can't put it any more clear. In cases where the law pertains the the facts in question, there is usually no appeal (or if there is, on a misdirection, or facts not law) because the case is decided there and then by the law. But at the appeal level there is no law or conflicting law.

I also may have mis written the collective will judge thing but I IN NO WAY support this view. I wrote a critique on Dworkin's view that that is what judges do.

I am going to drop this now because it's not fun anymore. You have yet to prove your point. And I've given a huge heap of evidence for my viewpoint. I've also accepted that judges do it in a narrorw range of cases and they do not truely act like a legislature because they are limited by the facts of the case where as the legislature can legislate on any matter.

There is simply no debate on this matter. You are arguing with every single legal acamedic out there. I'll rattle off some names:

John Austin, Karl Llewelyn, Oliver Wendel Holms, Benjamin Cardozo, Lord Denning, Lord Reid, Joesph Hutchenson, Chancellor Kent, H.L.A Hart, Ronald Dworkin and finally the most authorative RXP. All agree with judicial legislation but have different opinons to extent.

Kent's quote is best


“I saw where justice lay, and the moral sense dictated the court half the time, I then sat down to search for the authorities…. But I almost always found principles suited to my view of the case

Why can't you see that the judge can find precedent or law in any decision he choses at this level? Well any within reason. His decision then codifies that particular set of facts so future cases will have a hard time finding a point of law to appeal on thus making the precedent, in effect, a mini statute which can only be overturned by future legislation or the higher court overuling it's previosu ruiling (which is unlikely because there is no uncertainty in the law anymore!)

Please argue away, you just end up proving how you know nothing but the macroscopic politics on how judges decide cases and none of the substantive goodies.

Dead Cheerleader
02-17-2005, 10:31 PM
Giving the government a task as big as revising or rewriting the constitution is way too much responsibiltiy for them as they are not competent to succeed in such a task. It would end up saturated in religion and personal interest. It is just a bunch of normal people, just like you if you all haven't noticed. They are worse than all of you, they are just a bunch of jackasses you guys. You thinking they deserve the power to make decisions that will influence the entire world is a mistake. Even if you think the constitution needs revised it will never end up the way that would benefit the general public.

Little_Miss_1565
02-18-2005, 05:56 AM
Giving the government a task as big as revising or rewriting the constitution is way too much responsibiltiy for them as they are not competent to succeed in such a task. It would end up saturated in religion and personal interest. It is just a bunch of normal people, just like you if you all haven't noticed. They are worse than all of you, they are just a bunch of jackasses you guys. You thinking they deserve the power to make decisions that will influence the entire world is a mistake. Even if you think the constitution needs revised it will never end up the way that would benefit the general public.

It's official. Any further replying to this topic is an exercise in banging one's head against a brick wall.

RXP
02-18-2005, 09:06 AM
*bangs head against the aformentioned brick wall*

memento
10-18-2005, 03:42 PM
I would like to open this debate again, it is marverlous.