As was foretold, we've added advertisements to the forums! If you have questions, or if you encounter any bugs, please visit this thread: https://forums.penny-arcade.com/discussion/240191/forum-advertisement-faq-and-reports-thread/
Options

The [American Constitution] Justifies Itself

123457»

Posts

  • Options
    spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    This talk about "natural rights" and invalid governments terrifies me. Would you call the US government invalid prior to the abolition of slavery? If you would, then it seems to me that you are locked into believing that an invalid form of government was somehow replaced by a valid form of government the instant abolition occured, made up of the same people, following the same governing documents, and recognizing as valid all the acts of the "invalid" government that existed before abolition.

    I really don't think we can talk coherently about any rights you have which you cannot enforce against the government or your neighbors. If we lived in a country without free speech and spoke out against the government I don't see what value there would be in arguing that the government is not valid because it does not recognize your natural right to free speech. You can argue that there SHOULD be free speech there, but you have to recognize that this argument would be an act of civil disobedience, and when you are caught and punished, that punishment would be a valid action by a valid government. In fact, it is this recognition that gives civil disobedience its strength.

    Put another way, you can hold whatever views you want about your rights as a person, but this is a completely distinct discussion from your rights as a member of American society, and one does not neccessarily have any bearing on the other

    Quite honestly? Yes, yes I would and I would do my utmost to either end slavery or try to find a way to leave for a country that did not practice that. By merely being a citizen within a system that consents to slavery I, by my own silence am also giving my own consent to a system of slavery. Like I said before in the copyright thread I feel like I've been pressed into the service of American society just for the reason of being born and find that condition to be immensely unfair to me and my person. So I'm most certainly going to make a lot of noise about anything I see as illegitimate or monstrously immoral. I wasn't given a choice about whether or not I would be forced to live this way, so I see no qualms about working to change the world around me when it didn't give me a fair choice about going anywhere else.

    I can see where there might be some disconnect but even if you view the law as a rational and utilitarian instrument. It is still an instrument TO DO SOMETHING so that means that laws cannot come into existence without purpose. It's easy to say that we have a system of law that allows society to function by resolving disputes but that's kinds of like me saying I have a car engine that lets my car function by powering it. It sure does, and it's an entirely true statement, yet without understanding how the engine achieves this I lack the ability to fix it or even know if something's wrong and suddenly I am at the behest of those who do (mechanics) if I want anything done. Your profession though would, I'm sure train you to view the law that way since it allows you to be very effective at arguing cases. But for someone who doesn't need to be able to take a steadfastly neutral stance to represent the facts at hand (in the most persuasive way possible.) I look at laws as more than just procedure. They're means to achieve an end, the end being the purpose (Whether spoken or not) held in mind by those in congress who passed the law.

    Legal validity matters only in terms of procedure, but in terms of purpose I believe laws must draw from a source of moral validity to be laws I would follow. Generally most laws pass this test, but for instance copyright? I'll willingly admit I have no respect for IP law and will continue to flout it (I do pay for things, actually, but I reserve my money for artists/people I legitimately want to support.) Similarly if we passed laws like TN did to outlaw Occupy I'd say those are illegitimate and should be flouted as well. If the law does not attempt to justify itself morally then there are very few checks on what it can and cannot do. Similarly you can't really view the constitution as a valid fallback either because from such a standpoint the constitution is merely a matter of procedure, and therefore there can be no successful counter-argument against any amendment because moral validity is removed from being a source of reasoned dissent.

    Such a society would quickly become unrecognizable to us, and would quickly come to be a system indistinguishable from the former English society we left. Simply that we adopted a more elaborate system of procedure for our system of two-tiered justice. Instead of Nobles/Aristocrats and Monarchs we'd have merely replaced it with Plutocrats and generational wealth (in many cases still owned by former monarchs.)

    But I don't need to have a teleological understanding of the engine to have a functional understanding that lets me maintain it and keep it running. There may not even be agreement among mechanics, car owners, car designers, etc. about why the engine exists (some may say it is to enable us to travel further and faster, while others may say it exists to allow us to sell cars). The problem with saying that we can't have laws without having morality to back them up is that we may not be able to reach consensus on why a rule that we all agree is helpful should exist. If you have ever read senate floor statements, you will see that there is rarely unamity of purpose in making the law, and in fact, some laws which literally have no discernable legislative intent (like the EITC) just sit their doing a lot of good because they exist, even though we have no idea what motivated them. Incidentally, this fallacy of discerning a unified legislative intent is the basis for Scalia's jurisprudence. He believes (and there are plenty of liberals who follow him in this) that we should be able to interpret the law on the basis of the words on the page, and that if we cannot do this, then we should return results based on a strict reading that congress may not be happy with to force congress to be more precise with its drafting.
    edit:
    I am not attributing a moral force to it at all. Validity is nothing more than the result of following the proper, agreed on procedures, so that we don't get bogged down in endless disputes over what is or is not law. We follow the law because there are problems which people face when they want to live in a society, ranging from which side of the street to drive on to how high someone can build a house next to your house, to when you can and cannot hurt or kill another person, and we need these issues to be resolved in a manner which is understandable, and which everyone can assume that others will follow. You can argue to change something, and if we agree and change it through the process, that is fine. But what is important to a system of law is that a choice is made and followed, not what that choice is. You can argue that we should make certain of those choices on a moral basis, and again, that is fine if you can get people to agree, but ultimately, we are talking about coordination problems, and whatever the answer is, there just needs to be one, so that people know how to act.

    What's more important, providing step by step instructions so a "rational but evil" actor can cheat the system, or providing a system which will prevent people from cheating it? That doesn't mean that there aren't good reasons to have a stable and predictable set of laws but I disagree firmly on why that should be the case. We don't want people writing or enforcing the laws to exploit the system either to prey on the innocent. Sadly Occupy has shown this is already happening. Yes we use laws to help resolve disputes but without actually understanding the source of the disputes you neuter its ability to be effective. The Rule of Law is something more fundamental than "I write shit down on paper, and you do what it says or I can throw you in jail forever, maybe execute you." It was always, in my eyes, about creating a procedure to establish a fundamental fairness in all interpersonal dealings and disputes.

    If I scream that I feel oppressed because I cannot wear the color purple on Mondays, then no matter how much I scream that my flesh feels like it's being rotted away at my lack of purple attire the law should pay me no mind because I'm just some crazy kid screaming about his wardrobe. By acting as a 100% neutral party in that circumstance though? You are now forced to accede to some of my demands regardless of how reasonable they are or not. If everything is treated merely as procedure? Then my screams matter exactly as much as I have the wallet to buy legislation to force the nation to wear purple on Mondays. Now see what I just did? I got upset at something I could've fixed myself, and in retribution for not being given something made a law to force the nation to do as I want because I was a broken person.

    Without assigning moral force to the purpose behind laws then you are enabling this sort of thing to occur. Only now, replace wearing purple on Mondays with Birth Control/Abortion and you have what Republicans are arguing for right now in the Presidential races and with the House's "Religious Liberty hearings." Don't you see how that sort of thing can quickly become dangerous? It removes our ability to decide the society we live in because we become hopelessly bound to procedure which is already quite stacked in favor of protecting the Wealthy and wealthy interests amongst all others. Yes you can say we vote for Politicians to change that but by removing moral agency from considerations as to whether or not we should abide by the system you immediately give those in power the ability to kill any change with death by a million paper cuts. Every system has flaws and if we're not allowed to step in and modify one that has gone too far, the only choice left is to destroy and rebuild it. Which, would cost far more I think. ;p

    So in the end, by exercising our capability as moral agents in whether or not we follow laws it enables the system to be corrected against the wishes of a power structure that might fight change for immoral reasons. If laws cannot establish a consensus? Like if the South say, wanted to bring back Slavery and they decided to ignore any laws prohibiting it? Well at that point I think we as a society need to really ask the question of whether or not keeping the south is worth it. By trying to make them swallow a bitter pill we give them the same power to do that to us. It makes both parties equally unhappy and does little to actually fix the problems that originally caused the disagreement. After seeing what happened and is still happening in the Eurozone I'm convinced that governments should never get so big they are unable to establish a clear consensus among all of their governed. Otherwise you're just going to make more problems than you can fix. People will become bad actors and try their hardest to warp the government they don't want into the one they do want and governing then turns into a perpetual power struggle. Whoever wins? We The People, lose.

    You are right that my answer to perceived tyranny in a republic is that the voters should vote them out, and accept the will of the people if they do not agree this is really a tyranny. But where this system fails, I absolutely agree that we should fight injustice on moral grounds, but I think this is where civil disobedience comes in. Civil disobedience can be incredibly powerful because it demonstrates the injustice of the system, and forces us to confront it. If we go down the road of saying "this law is invalid because it is immoral" then we fragment society into those who agree with the morality behind the law and follow it and those who disagree with its validity and ignore it. But to publicly violate the law and accept the punishment because it is the consequence of keeping the law on the books? In my opinion, that is an enourmously powerful gesture, and if that gesture still fails to spark change, then it seems pretty clear that the majority agrees with the law, even seeing its harsh conseqeunces, in which case who are we to impose our own personal morality on an unconsenting majority?

  • Options
    shrykeshryke Member of the Beast Registered User regular
    spool32 wrote: »
    I think his point is that for the same thing to happen here, the President, supermajorities in both legislative houses, and 3/5ths of the entire country would have to go crazy, before anything happened at all.

    In the UK, the monarch is st the top, and then the parliament, and then the law. Here, the constitution is at the top, and every branch is subject to its restrictions.

    Pretending the real restriction is the somewhat arbitrary government branch divisions is to have blinkers on.

    The Constitution doesn't enforce itself, it depends on people to do that, while interpeting it in the process. If the situation exists that the government can start outright ignoring provisions of it, then it's going to be through either fear or ignorance a decent enough majority wants that or won't speak against it.

    Which should surprise no one as most of what people consider the most flagrant violations of the constitution have been very popular ("Protect us from terrorists!!!") and this has been known for a long long time.

  • Options
    PantsBPantsB Fake Thomas Jefferson Registered User regular
    Phyphor wrote: »
    I reject your given. The point of the monarch's reserve powers is specifically for the case where Parliament isn't working properly, so they dissolve it and get the people to re-elect them. The monarch can't actually govern in any case. The point of monarch as head of state is that they serve the country, not the party and they're supposed to act in the interest of the whole. In any case, I see no reason why the monarch would be unwilling to veto a term increase.

    Your point seems to be "if everyone goes crazy then bad things can happen!"

    edit: of course, after the passage of said term increase, parliament can still be dissolved by all the usual means, including reserve powers, so they'd have to get re-elected after having appointed themselves rulers for life. That would go over well I'm sure

    Again you're citing the power of the monarch as the protection against the government becoming undemocratic. Its internally incoherent. An empowered monarch prima facie proof of the absence of a real democracy.

    Any time you have an unelected, hereditary figure who can veto any law or dissolve any government unilaterally, you don't have a democratic, egalitarian government. The normal British answer to this is "but the monarch wouldn't do something like that" or "custom says they can't" or "they don't really have that power."

    If we accept those excuses, you have a Parliament whose powers are effectively unchecked by anything but their own ambition. When a group of people has unfettered power to write whatever laws and take on whatever powers they deem advisable including whether or not they have to stand for reelection, you don't have a democracy.

    Either way, you have a government that may be stylizing itself as democratic, and may be governing in a way that is better than the results a democracy could generate. It could even be more responsive to the will of the people. But its not a government whose authority stems from the people, nor one restrained by anything but the whims of those who hold the reins of power.

    11793-1.png
    day9gosu.png
    QEDMF xbl: PantsB G+
  • Options
    encore114encore114 Registered User new member
    shryke wrote: »
    Nova_C wrote: »
    spool32 wrote:
    Of course something being part of the Constitution now doesn't mean it must be forever and always, but right now, it is. The burden rests on those who wish to change or remove the 2nd to demonstrate why the government should be allowed more power to restrict that right. That is a fundamental difference and you really can't just wave it away by going nun-uh. It's how we operate with respect to the Constitution.

    I'm not saying that, though. What I'm saying is the fact that second amendment exists is not justification of it's continued existence.

    As in, if I say "Guns should be restricted for reasons A, B and C" the response "But the constitution says no, so nyah!" does not a good argument make. Rights should be justified by their consequences, good and bad, in society, not because it is written down somewhere.



    1)Rights don't need to be justified, that's why they are rights. Restriction on those rights need to be justified. If they needed to be justified they'd be called privileges.

    2)Its a good argument because it stems from the will of those it effects. There is no final arbiter of rights to appeal to(well God if that's your view but lets not go to God's will as justification). If American's collectively agree it is a fundamental right it is, in the USA. There's no one to award you points for having a more convincing argument, besides the people who are collectively saying "nyah".

    This is circular reasoning. Pretty much the exact type the OP was referring to.

    You need to justify that they are rights.

    Err no. The foundation of the US Constitution is one of limited, enumerated powers. Unless the Constitution states that the national government has the authority to infringe upon the sovereign rights of the people, those rights are assumed to have remained with the people.

    The Bill of Rights themselves do not "grant" any rights to We, the People. They are an explicit enumeration of rights that the sovereign people have not submitted upon the creation of the National Government. We, the People did not give up our right to free speech, freedom of religion, right to bear arms, etc. to the national government. Accordingly, We, the People are not afforded those rights through the grace and goodwill of the Government. Rather, those are rights that were never surrendered to the national government in the first place.

    So yes, in this case, we have the right to bear arms because We, the People have that right.

  • Options
    PantsBPantsB Fake Thomas Jefferson Registered User regular
    edited March 2012
    spool32 wrote: »
    I think his point is that for the same thing to happen here, the President, supermajorities in both legislative houses, and 3/5ths of the entire country would have to go crazy, before anything happened at all.

    In the UK, the monarch is st the top, and then the parliament, and then the law. Here, the constitution is at the top, and every branch is subject to its restrictions.

    Pretending the real restriction is the somewhat arbitrary government branch divisions is to have blinkers on.

    The Constitution doesn't enforce itself, it depends on people to do that, while interpeting it in the process. If the situation exists that the government can start outright ignoring provisions of it, then it's going to be through either fear or ignorance a decent enough majority wants that or won't speak against it.

    The question is legitimacy of action.

    If the US Congress, US President and Supreme Court all conspired tomorrow to pass an edict that named them oligarchs for life, their actions would be inherently illegitimate because its in violation of the law and the foundation of their authority regardless of how they used that power. Yes, they could still do so but it would constitute a revolution (or more accurately a coup) and a new basis for authority would be needed.

    If the Prime Minister, a majority of MPs and the British Monarch all conspired tomorrow to pass a law that named the monarch supreme ruler and members of parliament as life members and the new aristocracy, their actions would not be against the law and would not violate their foundation of authority. Any illegitimacy would derive from the inherent illegitimacy of the system of government that is undemocratic/non-egalitarian or from particular abuses they subjected their people to. The former would also declare the current government illegitimate, the latter could certainly fail to be met while still ruling without the semblance of democracy. If one said "you can't do that!" there's no basis for this except personal opinion.

    The benevolent dictator is not a democratic or egalitarian figure. The US government is derived from a democratic/egalitarian foundation. The UK government is a monarchy going through a democratic phase or an oligarchy that allows portions of itself to be deposed periodically, even if their policies are not uncommonly superior to the US's.

    PantsB on
    11793-1.png
    day9gosu.png
    QEDMF xbl: PantsB G+
  • Options
    shrykeshryke Member of the Beast Registered User regular
    PantsB wrote: »
    spool32 wrote: »
    I think his point is that for the same thing to happen here, the President, supermajorities in both legislative houses, and 3/5ths of the entire country would have to go crazy, before anything happened at all.

    In the UK, the monarch is st the top, and then the parliament, and then the law. Here, the constitution is at the top, and every branch is subject to its restrictions.

    Pretending the real restriction is the somewhat arbitrary government branch divisions is to have blinkers on.

    The Constitution doesn't enforce itself, it depends on people to do that, while interpeting it in the process. If the situation exists that the government can start outright ignoring provisions of it, then it's going to be through either fear or ignorance a decent enough majority wants that or won't speak against it.

    The question is legitimacy of action.

    If the US Congress, US President and Supreme Court all conspired tomorrow to pass an edict that named them oligarchs for life, their actions would be inherently illegitimate because its in violation of the law and the foundation of their authority regardless of how they used that power. Yes, they could still do so but it would constitute a revolution (or more accurately a coup) and a new basis for authority would be needed.

    If the Prime Minister, a majority of MPs and the British Monarch all conspired tomorrow to pass a law that named the monarch supreme ruler and members of parliament as life members and the new aristocracy, their actions would not be against the law and would not violate their foundation of authority.
    Any illegitimacy would derive from the inherent illegitimacy of the system of government that is undemocratic/non-egalitarian or from particular abuses they subjected their people to. The former would also declare the current government illegitimate, the latter could certainly fail to be met while still ruling without the semblance of democracy. If one said "you can't do that!" there's no basis for this except personal opinion.

    The benevolent dictator is not a democratic or egalitarian figure. The US government is derived from a democratic/egalitarian foundation. The UK government is a monarchy going through a democratic phase or an oligarchy that allows portions of itself to be deposed periodically, even if their policies are not uncommonly superior to the US's.

    The problem PantsB is that you are enough of a silly goose to think this matters.

  • Options
    PhyphorPhyphor Building Planet Busters Tasting FruitRegistered User regular
    PantsB wrote: »
    Phyphor wrote: »
    I reject your given. The point of the monarch's reserve powers is specifically for the case where Parliament isn't working properly, so they dissolve it and get the people to re-elect them. The monarch can't actually govern in any case. The point of monarch as head of state is that they serve the country, not the party and they're supposed to act in the interest of the whole. In any case, I see no reason why the monarch would be unwilling to veto a term increase.

    Your point seems to be "if everyone goes crazy then bad things can happen!"

    edit: of course, after the passage of said term increase, parliament can still be dissolved by all the usual means, including reserve powers, so they'd have to get re-elected after having appointed themselves rulers for life. That would go over well I'm sure

    Again you're citing the power of the monarch as the protection against the government becoming undemocratic. Its internally incoherent. An empowered monarch prima facie proof of the absence of a real democracy.

    Any time you have an unelected, hereditary figure who can veto any law or dissolve any government unilaterally, you don't have a democratic, egalitarian government. The normal British answer to this is "but the monarch wouldn't do something like that" or "custom says they can't" or "they don't really have that power."

    If we accept those excuses, you have a Parliament whose powers are effectively unchecked by anything but their own ambition. When a group of people has unfettered power to write whatever laws and take on whatever powers they deem advisable including whether or not they have to stand for reelection, you don't have a democracy.

    Either way, you have a government that may be stylizing itself as democratic, and may be governing in a way that is better than the results a democracy could generate. It could even be more responsive to the will of the people. But its not a government whose authority stems from the people, nor one restrained by anything but the whims of those who hold the reins of power.

    It's really not. You don't need every single position to be elected. The US Senate was initially appointed, did that make your government undemocratic? The monarch, by custom, exercises their powers at the request of parliament, but they reserve the right to thwart parliament when they see a need to. Yet, by doing so, they risk their entire position in the government because parliament is still supreme and can effectively get rid of the monarchy, so they're not going to do it trivially.

    The real check is the ability for the monarch to throw the entire issue back to the people via reserve powers, they can't actually sit there and veto in perpetuity, nor can they dissolve every government that gets formed. So what would actually happen is they try a power grab, which gets vetoed and an election is called. Either the people support said power grab and they get back into office and remove the monarch or they don't get back into office, preserving the status quo. Commons (ie, the people) always sits on top, the other elements of the government can only really stop them long enough to make sure the people actually support what's going on.

    The system is a more complex relationship than "X is subordinate to Y" because it's closer to "X is nominally subordinate to Y, yet Y can be removed by X, but only if Y pisses the people off enough to support its removal"

    The legislature (in general) can grab power anyway. Consider an amendment: "The terms of members of Congress and all state legislatures is increased to 100 years"
    Let's say you have enough votes to get it through the house and senate. Then you're relying on the states to not be crazy and grab power. The states that are currently crazy in some cases. The barrier is higher sure, but it's still climbable. And the real limitation here is if the people support what's being done, effectively the same as the UK

  • Options
    AManFromEarthAManFromEarth Let's get to twerk! The King in the SwampRegistered User regular
    IIRC, the UK has an unwritten constitution based on a couple hundred years of law and precedent that makes the proposed House of Commons takeover just as illegal and a US one.

    We're not the only country with legitimate democracy.

    Lh96QHG.png
Sign In or Register to comment.