That's Unconstitutional

[Cybrweez]

OK, tried to get to the bottom of this idea of unification in another thread, but didn't get to far. So I'll try another one.

The phrase, "that's unconstitutional", is thrown around a hell of a lot more than unification. I'll wager most Americans in the 'tank have used that line.

So, what does it mean? How do we determine what the constitution means, and whether any action or law is unconstitutional? I'm sure there's no objective way, so how do we get close enough?

[Brother Charn]

Isn't it deceptively simple?

First, let us agree on what items are constitutional - that is, explicitly or implicitly prescribed by the US Constitution.

Then, anything that contradicts or otherwise seems to go against anything on that list we can term unconstitutional.

Easy, right?

Except, er..... does this include the Amendments, or just the main Articles?

Oh... should we go explicit <only>, or can we expand based on the interpretations made by the Supreme Court that attempt to clarify 'constitutional positions'?

OK - maybe not so clear after all.

dw

[Cail]

Such is the reason we debate.

[Cybrweez]

Right, so if its not so simple, does the phrase really have no meaning?

[wayfriend]

Unconstitutional means prohibited by the US Consititution. Amendments are included, because they are literally things added to the Consititution.

Often times people argue that such and such is "not in the Constitution" to declare it invalid or inappropriate, but if it's not expressly forbidden, it merely means that the States have dibs on the issue.

It's true enough that sometimes its quite complex to decide if the Consititution allows or prohibits certain actions. This is mostly due to categorization issues. For example, whether or not reading someone's email fits into the category of "search and seizure". Other disputes arise from attempting to prioritize one aspect of the Consitution over another, when application of different pieces can provide conflicting results.

[Cail]

Or simply ignoring what the Constitution explicitly says in favor of supposed pragmatism.

[aliantha]

If there is anyone here who can unerringly determine, on any given issue, what is Constitutional and what is not, I will nominate you for the US Supreme Court.

Seriously, why do you think we pay lawyers such bundles of money? Because the constitutionality of anything and everything can be endlessly debated.

[Cybrweez]

Well then, ali, you would agree, the phrase has no meaning?

We can't know what is Constitutional? Only judges can tell us, b/c they have the final say? Can we say a judge's decision is unconstitutional?

[rdhopeca]

Well then, ali, you would agree, the phrase has no meaning?

We can't know what is Constitutional? Only judges can tell us, b/c they have the final say? Can we say a judge's decision is unconstitutional?

IIRC, the role of the courts is to decide what is Constitutional and what is not. And I wouldn't call their say "final", as amendmends to the Constitution can be made.

[aliantha]

Well then, ali, you would agree, the phrase has no meaning?

We can't know what is Constitutional? Only judges can tell us, b/c they have the final say? Can we say a judge's decision is unconstitutional?

Of course. That's why we have appellate courts.

And as rdhopeca points out, the system has checks and balances. The Constitution can be amended. It's a major pain in the butt, but it can be done.

(You know that I work for a law firm, right?)

[Avatar]

For something so important, it's pretty amusing that there's so much discussion about it. I know I've posted before that my countrys constitution has a big loophole that lets anything in it be suspended if the courts agree that it should be.

Constitutions, any constitutions, are really fictions. They're a governments promise, they're enforced by the government, and they can be broken by the government.

We act as though they're building blocks of the universe, or at least society, but in real terms they're only as valid or powerful or dependable as the government allows them to be.

--A

[lucimay]

in my understanding a constitution is a guiding or...set of guiding principles of government.

Constitutions, any constitutions, are really fictions. They're a governments promise, they're enforced by the government, and they can be broken by the government.

We act as though they're building blocks of the universe, or at least society, but in real terms they're only as valid or powerful or dependable as the government allows them to be.

you're so right, Av. thus France's long and bloody haul toward Republic. (5th time's charm? )

i have long said that the problems this particular country faces are yet growing pains previously experienced by other, older governments and societies, which is why i don't get so all het up over some of the discussions like some here in the tank. (that is not a complaint about anyone's passions on any issues, but just an observation) i know that...or at least i think that many things in societies are transient. time and tide and all that. governments or forms of governments as well.
constitutions do not make nations.
people do.
it's all about how we agree to treat one another that separates or divides us.
a constitution is a sort of agreement we all make on how to treat each other. yes? a guiding principal?
so why is it open to interpretation?
eek.
i've just lead myself down some sort of ideology path huh.

i'm thinking out loud here if you couldn't tell.

[Avatar]

it's all about how we agree to treat one another that separates or divides us.

Now if we could just agree to treat each other well...

--A

[lucimay]

it's all about how we agree to treat one another that separates or divides us.

Now if we could just agree to treat each other well...

--A

yep. ('cept i meant to say separates or unites us )

[Cybrweez]

But wait, people make nations. So laws that people vote on, we would say they can't be struck down by a Court, b/c the nation is the people. It would mean, any court cannot strike down a law as unconstitutional, b/c the people have spoken?

[Cail]

Nope. The Constitution is about principles, not popular opinion. If the people of California voted to open a no-limit hunting season on illegal aliens, no matter how much people might agree with it, it violates the Constitutional principles of the nation.

Now, if the government were to classify it as an invasion and mobilize the military.......

[Cybrweez]

Well, it seems that's debatable, from the other postings here.

But let's assume you're right. How do we determine the Constitution's principles?

[Cail]

That's the trick. I tend to lean towards original intent. In other words, based on the men who wrote the thing, based on their writings, and based on what the Constitution actually says.

Now of course that's tricky too, but I tend to believe that's the best way possible to interpret the Constitution.

[Cybrweez]

I'm reading a book, Original Intent, which has that very theme. But last nite, I started to think, ok, he makes a convincing case about the original intent, in regards to 1st Amendment and religion, but I wonder, does anyone care about original intent?

[Cail]

They should.