The Glade 4.0

/bonk

Hi, welcome to the Glade...

No, it simply IS true. There is no objective "these laws are Constitutional and these are not" standard that can be consulted. If that were true, we would not need courts to rule on such matters at all.



Since a person is "innocent until proven guilty" that's exactly how we do things. Appeals do not look at matters of fact, they look at matters of law. An appeal doesn't change the finding of guilt based on changes in the facts, but on how the law or procedure was applied.



Yes, and yet that is still their opinion. If the Sandy Hook shooter is found not guilty in a court of law, then he is not guilty, no matter how well everyday citizens can determine that he did the actions. Citizens are not empowered to enforce their findings of "guilt" on other citizens, and they are similarly not empowered to enforce their findings of Constitutionality or not on the nation. Your example is one where facts are quite obvious, but if you allow citizens to act on their "findings" in cases like Sandy Hook, people will start taking it upon themselves to do the same in cases where there is far less certainty, but where people are just absolutely sure they know what's right, and brush aside anything to the contrary.

We can look at the case of George Zimmerman. There is no question that he shot Treyvon Martin. Any citizen can, indeed, know that he did; he isn't contesting that. The question is "does that shooting constitute murder?" Citizens can have their opinions, but they cannot act on them; they are not empowered to exonerate Zimmerman if he is found guilty, nor punish him if he is found innocent.



That's because it was ruled on in the past. In both of your other examples - Brown v. Board of education and Roe v. Wade, the laws were not "obviously" unconstitutional at all. You're acknowledging exactly what I'm saying - people are entitled to their opinions, but no matter how "obvious" it appears to some glader that something is unConstitutional, it isn't until a court says so. In obvious cases, we can probably predict how the court will rule, but in many cases its only obvious to the gladers because they are simply unwilling to acknowledge that any view other than their own of the Constitution could possibly be correct.

Here is some interesting supporting evidence for my claims from the legal encyclopedia American Jurisprudence.



But no one knows when a law is unConstitutional until a court says so. You cannot just go into court and say "I didn't obey law X because it was unConstitutional" as if it were some sort of "trump card". You have to state why, and if the court differs - you lose. Your idea about what was Constitutional was incorrect, no matter how certain you are to the contrary. No courts are bound to enforce it is the only part that matters. The writer of that passage is trying to have it both ways; he is talking about unConstitutionality in the abstract, without reference to the debate. His writing assumes a law where there is no debate. He can get away with that in the abstract, but with real application... he can't.

In many cases, one can be reasonably certain, or even very certain, the courts will agree, especially when there are past rulings on the matter. Where a law directly contradicts a past ruling, we can cite the ruling and say with certainty, yes, its unConstitutional, but there it must directly contradict the ruling; once one starts extending and extrapolating from the ruling, one quickly goes back to the realm of opinion.

Those opinions might have strong reasons behind them, if there is some very obvious contradiction with the Constitution or a prior ruling, but its still an opinion.



No one is arguing that this law (actually, court order, not law) is Constitutional. What's being argued against is the habit of simply proclaiming things unConstitutional as if it were fact, and then simply refusing to debate the issue. Just telling people "that's statist and wrong" is not debate, it's begging the question.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Actually, you very much can do that. In fact, one could easily argue, based on the various oaths of office in this country, that public officials are expected to do so. Now, that said, if the courts (up to and including the USSC) disagree, you would naturally be found wrong. Furthermore, if the matter were criminal, you may be detained pending determination along the way.



Actually, considering most of that citation is from Justice Marshall, and was in regards to a specific case, he most certainly is using a "real application."




Well, no, it's not "begging the question." It's declaration by fiat. It's potentially (if you view "statist" as a perjorative, which you seemingly do) also an ad hom by way of well-poisoning. Beyond that, it's just opinion.

You should be remarkably well versed in all three of these fallacies, as that's pretty much the only post you generate anymore (aside from the fourth fallacy of argumentum ad nauseum).

However, let's grant you that calling the viewpoint "statist" is fallacious through one method or another.

The viewpoint that laws are not unconstitutional until declared so is "post hoc ergo propter hoc", and thus equally invalid. The result is not the cause. This is true both in the abstract, philosophical sense as well as within the legal sense.


Perhaps what you meant to have been arguing also this time is with the opinion of many posters here (and a large body of the American public at this point) that this spying is unconstitutional. That's the only properly logical viewpoint I can discern from your posting patterns on this matter.

Poster says: that law is unconstitutional.
DE says: laws aren't unconstitutional until the Courts say so.
Posters say (with evidence): incorrect, unconstitutional laws are unconstitutional from point of passage.


So, in a sense, you're correct, insofar as individual are expressing opinions as to the Constitutionality, and ultimately it may take a court to create a final decision. That doesn't change the fact that, if found by a court to be unconstitutional, it was unconstitutional the entire time.

Perhaps you would find that too abstract. Let's look at a practical application: can a soldier refuse an unlawful order?

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

Yes, and each of those officials must act in accordance with their understanding of the Constitution where there has not already been a clear determination. As you say, they can be found wrong, but they could also be found to be right.



Except that he is talking in generalities in that passage. He is not referring specifically to the case. If there were no questions of constitutionality, that case would not have been in front of him.




Declaration by fiat of the answer to the matter in question is, essentially, a form of begging the question.



All you're doing here is trying to score points. I don't do any such thing. Declaration by fiat, however, pretty much constitutes your entire Hellfire history.



It is not post hoc ergo proper hoc in either sense. When a law is found to be constitutionally invalid, that finding becomes retroactive; its past effects are legally nullified insofar as it is possible to do so. We do not, however, deem those on the losing side of the argument to have violated the Constitution, because that status was unknowable until the ruling occurs.



That is what I mean, and I happen to agree that this court order permitting this spying is not Constitutional because it constitutes a search without the specifics required for a valid warrant. That is not what I'm addressing though; what I'm addressing is simply saying "it's unConstitutional" as if it were not even permissible to debate the issue. If its found to be so in a case, it will become so retroactively.

If that happens, however, all efforts made under that order are valid as "good faith" efforts. While a law itself may become unConstitutional retroactively, the actions of thosxe following it because they thought it was Constitutional are protected. This is different from people who already know that a point of law has been settled, and ignore it anyhow.



Since the posters in question have provided evidence that doesn't actually say what you want it to say, no. That's not the case. when the courts rule something unConstitutional, they do so retroactively, but that is not the same thing as everyone knowing it was already unConstitutional. Obviously there was dispute; that's how the case gets to the court.



Exactly. But until that finding is made, you cannot use the fact that some laws are found unConstitutional and therefore become retroactively invalid to assume any other law is unConstitutional in the absence of a finding. All you can say is that you think it's unConstitutional.



That depends. How does the soldier know it is unlawful?

A soldier disobeying a lawful order risks court martial even in very clear cases. If the order is something well known to be unlawful, "shoot the prisoners", he's near-certain of acquittal. If it is less certain ("get rid of the prisoners", by which the commander means "turn them over to EPW processing" and the soldier just assumes means "shoot them") he's less certain of acquittal.

Again, in the abstract soldiers must not follow unlawful orders, but when the question is whether the order is unlawful at all, then it depends on the specifics. In my above example, the soldier might have a valid reason for thinking the order unlawful, but he can also ask for clarification.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Ugh, I don't know why you're so caught up on this idea. No one is saying that their statements here are anything but opinions. This is just a random forum on the internet. It should be obvious that nothing we say here has any effect on the application of law in the United States. Why do you keep constructing this straw man?

My argument is simply that laws are either unconstitutional or not, and their status does not change when the courts rule on them. Your argument seems to be that all laws are constitutional until they are ruled otherwise. Please correct me if I'm wrong here.

I've been trying to research this issue for a while now, and it's been very annoying. Every time you search for info on this kind of stuff, all you get are crazy right wing or libertarian blogs about nullification and how we should ignore laws we consider constitutional. But I've finally had some luck on Google scholar and a very interesting article from the Indiana Law Journal. I'm going to summarize and quote some of it here, but if this subject interests you at all I would encourage you to read it. You can view it here: Effect of an Unconstitutional Statute by Oliver P. Field. You will find a lot of very interesting cases and arguments summarized there, some of which I was going to bring up here.

Now, the quote I cited in my previous post seems to rely heavily on one USSC decision, Norton v. Shelby County, 118 U.S. 425 (1886). In that ruling, Justice Fields states:


Now that on its face seems to support my argument pretty clearly, and it's from the Supreme Court. Oliver Field admits that this decision "represents the weight of authority on this point of law" at the time he wrote the article, he provides lots of examples where lower courts conflict on this idea. In some cases they will rule as though a statute declared unconstitutional never existed, in others they will say the statute had the weight of legal authority up until the court ruled it unconstitutional.

A common example involves government officials who are stripped of their authority. Say someone is appointed to a position of authority by a state legislature, but then his appointment is found to be unconstitutional by the court. Are his acts before the court ruling still considered as though he was an agent of the government with all the authority his office entails? Generally the courts would say yes, but exceptions arose. One notable exception was when the law establishing the office itself is found to be completely unconstitutional. This is the kind of situation that happened in Norton v. Shelby, which prompted Fields to write the statements I quoted above.

Anyway, there are lots of interesting examples like that in the article. I'm just going to quote this paragraph near the end, which I think sums up the authors overall point pretty well.


Oliver Field's view of the way these cases should be handled lines up with Diamondeye for the most part, and he believes laws should be considered valid and constitutional until a court rules otherwise, and they shouldn't be assumed to have never existed. He attributes rulings like Norton v. Shelby to judges trying to hold up their idealized version of the law and not considering all the practical implications. I'm not really sold on his argument there, but it's interesting and raises many good points.

But the overall answer to our question about what the law says on the matter is really... it depends on the judge and how he feels about it. The summary at the end categorizes which kinds of cases are ruled which way. Of course, this is all from 1926, so I'm not sure what has changed since then. From what little I've read, it doesn't sound like anything major has changed since then, but if you're able to find some more modern sources that delve into this issue I'd be very interesting in reading them.

If we apply your logic in these kinds of cases, aren't all orders lawful until deemed unlawful by a judge? Therefore, soldiers should obey all orders until a judge directs them otherwise.

This would be pretty absurd. Obviously soldiers have to judge from themselves whether an order is lawful or not. Yes, they should definitely err on the side of assuming all orders are lawful and just obey them without asking questions, but there are still times when they will be given a clearly unlawful order and it's their responsibility to refuse it.

Similarly, citizens are required to interpret matters of law. At the most basic level, we're required to know the laws, ignorance is not an excuse for breaking it (I don't agree with this personally, but that's the common saying and legal opinion). I can't say for a fact whether an act I am planning on taking is against the law or not, but I'm not going to consult a lawyer on every decision I make.

But there can be other situations where we are required to interpret the law. For example, it's generally illegal to aid someone in the commission of a crime. If a friend asks you for help and you think they may be committing a crime, you're going to have to rely on your own judgment of the law.

This goes beyond ordinary citizens too. For example, President Obama asserts that he has the right to ignore laws he believes to be unconstitutional. Heck, everyone in the government who takes an oath swearing to uphold the Constitution has to interpret it just so they know what the hell to uphold.

I think it's clear that everyone can, and in fact is required to, interpret the law. We give them a lot of leeway, only expecting them to know the basics of what a "reasonable" person should know. The people in turn give the government the benefit of the doubt by generally following all laws that are passed and not questioning their validity. But there are exceptions, and blindly following a written law when it obviously conflicts with a law of higher authority could land you behind bars.

I think it's clear what DE's position is.

All laws are laws, and required adherence to them is not connected to any opinion of constitutionality up to the time when the courts decide.

This isn't a Schrödinger's cat thing, where until the courts decide our society can consider the law both constitutional and unconstitutional. While bantering about the constitutionality of a law is what all the cool kids are doing, there are only 9 opinions that really count and until those 9 people weigh in on the subject officially, it's assumed that the law is constitutional.

A law has to be challenged in the court system and the challenge has to succeed before the law is determined to be unconstitutional. That pretty well supports the assertion that the default is, a law enacted by the legislature is constitutional. It's in the same vein that a person is considered innocent 'till that is challenged and the challenge succeeds in the court system.

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In time, this too shall pass.

Not at all. Soldiers are trained on the nature of unlawful orders, and there is ample history in the military as to what orders are and are not lawful based on past cases. As I pointed out above, past cases mean some laws are already known to be unConstitutional. Furthermore, no one is disagreeing with the idea that officials should not follow laws they reasonably believe to be unConstitutional. What's being pointed out is that this belief does not make it so until the courts make a determination.

You're trying to make a direct comparison between orders and laws, and they aren't the same. Orders are specific to the situation. They are governed by regulations, in turned governed by laws, in turn governed by the Constitution. There's 2 extra layers in there that make tings completely different.

The point about" but it was always unConstitutional" is irrelevant here. What that does is prevent the finding from being "grandfathered" around. For example, if there's a law against ****, and you get 5 years for **** a sheep, and then the law is overturned, the government cannot argue that you must finish your 5 years because you were found guilty before the finding was made. Similarly, you cannot argue that your arrest and trial were a violation of your rights because those were done in good faith belief that the law was valid. Maybe you thought it was unConstitutional all along, but the fact that you were found correct after the fact does not make your belief either objectively true, nor something the justice system should have known, retrospectively.



And as I pointed out, soldiers are given training to know such things, and avenues (JAG, the Inspector General, simply asking the commander or his superior for clarification) and previous cases exist to assist the soldier in their decision. The soldier's personal principles don't determine what is or is not lawful; the principles of the Army do.

Again, the situations are not comparable because orders are specific to a situation. They are not laws, and the same principles don't apply. For example, if I order a soldier "go to the range and qualify with your assigned weapon" and the soldier does indeed go, and fire his weapon, but fails to qualify, I cannot prosecute him for disobeying my order - incompetence is not disobedience. I would have to show that he either failed purposefully, or that he did not go to the range, or refused to fire at all.

By contrast, if you drive a car, but for whatever reason fail to stop at a red light, your incompetence in that instance of failing to obey a traffic signal is a violation of the law. You may have had every intention of following the signal, but got distract for whatever reason and went through it.



Obviously not. However, your personal opinion as the the Constitutionality of a law is not an excuse for breaking it. You can make the argument, and a judge will make a determination, and eventually maybe the USSC will hear the case.

It's irrelevant that it was "always unConstitutional". No one knew that until the determination. Look at Brown v. Board of Education. Separate but Equal was "always unConstitutional", right? Nope, it wasn't. In Plessy v. Fergueson that same court found the opposite. So it was "always Constitutional" until Plessy, but then Always unConstitutional once we got Brown? Or the original court was just wrong because unConstitutional always wins over Constitutional? Or just because Plessy offends our sensibilities, so we want it to be "correct"?

No. That is not what "always unConstitutional" is about. As I pointed out, it prevents people from continuing to apply effects of the alw that occurred prior to the decision on the basis that the law was Constitutional at that time. It in no way implies that those that agreed with the court's eventual decision were pointing out some objective, obvious truth.



That's judgement as to facts, not to the law.



Everyone has that right because everyone has a right to a trial. You can't simply be tossed in jail without a hearing, so therefore any law can be challenged. You cannot, however, demand that other people adhere to your opinion of Constitutionality if the matter has never been heard. You can make arguments why they should, but they are not in any way betraying the Constitution by disagreeing with you.



And this has nothing to do with the point. Anyone can interpret the law, what anyone cannot do is represent their interpretation as authoritative. People like to try to toss out court rulings on such matters that they don't like with the argument that the ruling itself is unConstitutional, or they try to act as if a court ruling is unimportant when it hasn't happened yet because their interpretation is somehow authoritative.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

That's all true. However, let's say the law against **** also creates a new government agency, the Department of Alcohol, Tobacco, and ****, with special agents who will enforce this new law. Then an ATSF agent catches you **** a sheep, so he forcibly removes you from the sheep, throws you on the ground, handcuffs you, and hauls your *** to jail. Several months after your arrest, the Supreme Court rules the entire **** law unconstitutional and you are set free. In this scenario, you can sue the ATSF agent who arrested you for battery, kidnapping, etc. The ATSF agent can also be held criminally liable for these actions.

My point is, it's not as black and white as you're making it out to be. What if it's not the USSC declaring a law unconstitutional, but a lower district court? What if different districts have conflicting precedents? What if a law is declared unconstitutional, but then the legislature passes another law with the exact same wording? What if it's the exact same except for 1 word, which may or may not affect the constitutionality of the law? What if a law is declared unconstitutional, so you go out and break that now-irrelevant law in celebration, but then a week later the court reverses its decision and declares it constitutional again? What if the USSC declares a law unconstitutional, but there are ten more laws on the books with a similar defect that would likely render them unconstitutional as well, but they have not been ruled on yet?

There are many situations where it would be simply wrong to assume a law is constitutional, just because a court has not ruled it so. Indeed, you can even be held criminally liable for such an assumption, as in my **** example above. You are right that there are many situations where it would be wrong to assume something is unconstitutional based on your own personal interpretation of the law. I'm not disputing this, though you seem very eager to argue against this imaginary position of mine. But you also don't seem to be disputing anymore that people can interpret the law (including the constitution), or that some laws can be unconstitutional before a court has ruled on them yet. So I'm not sure there's anything left to discuss really. No sense hashing out every little detail that remains.

Camp Williams? That's a 20 minute drive from my house. Hmmmm.

Sent from my Galaxy Nexus using Tapatalk 2

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Les Zombis et les Loups-Garous!

Can you point to an example where something like this has actually happened? While anyone can attempt to sue anyone at any time, I'm not aware of any case where the individual agent has been able to be targeted when performing something that at the time could be reasonably expected to be a lawful order.

For example, I'm not aware of any gay men suing state police after sodomy laws have been repealed or found unConstitutional for damages when they were arrested.

No, you cannot, and no he cannot. He acted in good-faith belief that the **** statute was Constitutional. You can try.. but you'll fail.



No, there really aren't such situations. The only time such situations exist is when similar cases have already ruled on, and those don't fall within the scope of the discussion since they are not in dispute, or when such a reading of the Constitution is so patently absurd or irrelevant to its text as to require only cursory review by the court anyhow.

You've been using examples like military orders that you don't understand, and don't seem aware of the concept of good faith so.. you don't know what you're talking about. You're wasting my time.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

You know, this kind of argument only comes about because contemporary Americans don't understand what a didactic, negative rights document with deliberately restrictive language does. I mean, hell, we have a government agent who still doesn't grok the 9th and 10th Amendments; and that doesn't surprise me, because the 9th and 10th Amendments are (not so amazingly) universally taught as being little more than non-substantive feel good measures that have no impact on governance.

What those two amendments say, on the other hand, is that our Federal government, under no circumstances except Amendment, has no powers not SPECIFICALLY and EXPLICITLY defined in the preceding text of our Constitution. That this thread continues to go on is not Amanar's fault, but the fault of an American society dependent on public education. A government is what a government does. If the Constitution actually mattered, the Obama Administration would be in jail, 90% of our legislatures would be pending sentencing, and John Roberts would have been drawn and quartered. It doesn't matter anymore. Our government has demonstrated a complete disregard for the Constitution, and our education has convinced most of you that the document's meaning changes because of lexical drift.

The Constitution is not a document to be interpreted.

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Hey, do government provided "Obamaphones" come with fine print that allows the NSA to record all calls?

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Haven't you been paying attention? They don't need the fine print.

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

They don't need it but they can always pull it out and say, "Well you agreed to this ****!"

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Why would they want to do that? That's tantamount to admitting that they need agreement.

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"Aaaah! Emotions are weird!" - Amdee
"... Mirrorshades prevent the forces of normalcy from realizing that one is crazed and possibly dangerous. They are the symbol of the sun-staring visionary, the biker, the rocker, the policeman, and similar outlaws." - Bruce Sterling, preface to Mirrorshades

Because I would laugh til I peed myself.

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Because they always want to have an ace in the hole.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

What do you mean by this, Khross? I'm guessing it's a shot at non-textualist approaches to the Constitution, but even hard textualism requires analysis/interpretation beyond simply cracking open a dictionary from 1787.

Are you going to just keep making stuff up, or are you going to actually bring some evidence to the discussion? The United States Supreme Court says you can, in the case Norton v. Shelby, which has never been overturned. Why should I believe you over the Supreme Court?

Practically speaking, you're probably right that you wouldn't get charged criminally, and it will depend a lot on the circumstances, the judge, and the state you're tried in. But an officer's "good-faith" belief in an unconstitutional law is not any more valid as a defense than a libertarian's good-faith belief that a law is unconstitutional and thus doesn't need to be followed. And there are many examples of successful lawsuits against people following a law that was later deemed unconstitutional.

Example: Sumner v. Beeler, Indiana Supreme Court (1875). An officer was sued for arrest that was made under a statute that was later ruled unconstitutional. The Indiana Supreme Court concluded he was liable for damages, stating: "All persons are presumed to know the law and if they act under an unconstitutional enactment of the legislature they do so at their own peril and must take the consequences."

RangerDave:

Contrary to current juridical theory in the United States, the Constitution doesn't require anything in the way of interpretation. More the point, anything that requires an interpretative justification, is likely prohibited from the 9th and 10th Amendments. The Constitution of the United States of America is a negative rights document. It is, by design, a contractual obligation of restraint on our government (See Chief Justice Jay). The Constitution tells our government, by and large, primarily what it cannot do. It also lists a very specific set of powers and abilities the Federal government is allowed to possessed. And the 9th and 10th don't require interpretation: they point blank state that the Government's powers end with the Constitution and its specific statements of scope and authority.

That said, have you read Roberts's decision on the Affordable Care Act? You and I both well know that John Roberts redefined Indirect and Direct Taxation in that decision; he redefined it in a rather spectacular way made allowable (if allowable at all, and that's arguable) solely by the presence of the 16th and 17th Amendments. But even his justification there is spurious, because our courts have defined those taxes in a completely different manner prior to that decision. He actually expanded federal taxation ability more than the 16th Amendment.

There is room for extra-textual information when reading the Constitution, but the goal here isn't originalism or intentionalism or non-textualism in any legal sense you're discussing. We don't need those things; we have the document, which was by and large written in plain English.

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Actually, "qualified immunity" would protect cops and other governmental officials from suit today (at least under Federal law, including claims for violation of one's rights under the US Constitution). I don't know for sure whether every state has adopted similar protections for state laws/constitutions, but I'd be amazed if they haven't. Basically, unless the government official acts in a manner that any reasonable person should know violates "clearly established law", he/she can't be sued in their individual capacity. If there's a law on the books, I imagine it'd be pretty much impossible to successfully pierce qualified immunity by arguing in retrospect that its unConstitutionality was "clearly established" before the courts had overturned it.

Which is a serious problem.

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine