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Personal discussion of the Constitution's significance 
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Post Personal discussion of the Constitution's significance
Mad, I didn't want to sidetrack the other discussion, but I think these questions are significant.

Me: Are you asking if a just outcome and a constitutional outcome are in conflict, what should take precedence?
Mad: That's part of the question, yes;

Well let's take that more manageable part then. Off the cuff, I think I would, for the most part, support constitutional protections even if they are in conflict with just outcomes (assuming we have similar notions of what justice is). For one thing, as wily as constitutional interpretation can be, the Constitution is, at least, a concrete document, as opposed to "justice" which is a concept. Additionally, though justice might be a goal we can agree a respectable judicial system should strive for, and a goal in many ways protected by the Constitution itself, the Constitution is the foundation of our country. Until we, as a nation, decide to forgo the Constitution, it should continue to trump other ideologies should they be in conflict. (Let me emphasize I have not thought this through to the bitter end. This means, I reserve the right to choose justice over the Constitution if you invent a scenario where justice should take precedence. I just, at this late hour, don't foresee such a scenario.) For instance--assuming one thinks a more just outcome in criminal matters is a verdict that takes into consideration all evidence whether constitutionally acquired or not--the Fourth Amendment and a just outcome for victims of many crimes are often in conflict. Yet, recognizing the significance of the Fourth Amendment, and the constraints of the Constitution on the legal system, I accept search and seizure limitations, and defendants' constitutional rights, that often nullify what is otherwise credible evidence.

Mad: in part, it's a lead in to a more general inquiry as to what decisions go into a) your interpretation of law, justice and the place of the Constitution in both, and b) how everyone else interprets those things (in as much as we can discuss how everyone else does anything).

Outside of the law I deal with on a day-to-day basis, I haven't studied much "law," as in statutes/legislation. Likewise, justice is such a theoretical, hardly definable concept. What I, or you, or the lady down the street, or the guy next door, considers just will differ. My inquiry into jurisprudence is still in its infancy, but, for now, I rely largely on the Constitution. And because I have yet to fully flesh out my interpretation of law, justice and the Constitution, I can hardly speak to anyone else's interpretation.

As a general answer to your "general inquiry"--and at the risk of making myself vulnerable to all kinds of criticism--when it comes to American jurisprudence, I've pretty much drank the cool-aid. Of what I have learned thus far, I accept most of what the Constitution has to offer. This is not to say I perceive the Constitution to be without flaws. It has limitations, as any system of government will, but it offers a workable paradigm. And the "workable" part is the most significant to me. Each day, often unwittingly, people contribute to cases that will determine a new, hopefully progressive, course for this country. The "bong hits for Jesus" student tried to challenge public schools' limitations on student free speech and, with this conservative court, lost. Yet, he's had a place in outlining a framework for public school students' free speech rights. And tomorrow there will be another challenge, on another issue. As long as we keep inquiring, and studying, and challenging, and arguing, we're progressing--and by progressing I don't mean that we are going anywhere, or even headed anywhere, just that the debate is alive and well. I understand this a dogma of my own, that I can be labeled a religious-like fanatic of the Constitution; but, as a U.S. citizen, I accept that. My submission to "We the people" has been a conscious undertaking. Until "we the people" decide otherwise, the Constitution is the source from which U.S. government ideology should flow. Thus far, I have chosen to accept that source and examine it accordingly. That does not mean that I will always and forever accept it, nor that I will not challenge it. But, for now, I'm content just in examining it. And now, after sounding like a flag-waving nationalist, I'm wondering if that "general" explanation at all answers your inquiry. What can I say? I'm tired, it's a week before the Fourth of July and I live in Philadelphia, where I can't walk ten blocks without seeing Ben Franklin checking out his bifocals, or hearing "Yankee Doodle Dandy" on a tin whistle--you don't think that's not going to contaminate my answer? All joking aside though, let me know if you need a better explanation, or have more specific questions. I'm not trying to be evasive. It's just that legal theory after 2AM is not wise.




Fri Jun 29, 2007 1:22 am
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Post Re: Personal discussion of the Constitution's significance
Not to belabor the obvious, but the Constitution can be amended when it appears to support a social arrangment in which "just" outcomes are thwarted.

It was, after all, orginally written as a document in which slavery was not only recognized but supported and in which the legal equality of women was not contemplated. A large part of the history of the United States has involved the extension of constitutional protections to people who were excluded at the outset. That history has been the record of our nation's effort to evolve toward a more "just" society.

Of course, what justice means is in itself a moving target and changes from one generation to the next. I like the idea of "justice as fairness" from John Rawls' A Theory of Justice. That leads into a whole range of discussion about justice, fairness and the relationship between the two -- maybe Rawls' book would be a candidate for a future discussion.

In short, I think there always will be a tension between the Constitution and social justice because the Constitution is a fixed document and changes, either through amendment or interpretation, fairly slowly. However, it does change over time. Most of the time, though there have been some notable exceptions like the failed experiment with prohibition, it seems to be moving toward social justice.

George

http://www.godlessinamerica.com

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker




Fri Jun 29, 2007 10:50 am
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Post Re: Personal discussion of the Constitution's significance
Sorry it's taken me a moment to get back to this, but let me assure you that my purpose in asking these questions was not to prop you up before a firing range. I only wanted a little background of your perception of some very broad issues related to political philosophy so that I wasn't constantly guessing at what undergirded your end of the discussion. I don't intend to start taking swipes at the scaffolding of your beliefs.

Off the cuff, I think I would, for the most part, support constitutional protections even if they are in conflict with just outcomes (assuming we have similar notions of what justice is).

That's probably not a terribly safe assumption. It might be useful to discuss precisely what it is we mean by justice. You might want to type out your own opinion on the matter before reading through what I've written below, just to ward off the temptation to structure some part of it as a response to what I've said.

I'll start by saying that I've been using the term in a pretty abstract -- rather than personal -- sense. I really don't think it's possible to structure an institution so as to maintain or exact justice (at least, not on the scale of the American justice system), in part because I think it likely that true justice, to whatever extent it's possible, encompasses so many more factors than a civil institution ever could. To that end, when I've spoken of justice elsewhere in this forum, I've done so mostly as a reference to popular notions of justice, rather than to my own beliefs on the subject.

What the civil institution can address is the civil balance, and it does so in reference to a number of ideals, most of them presumably embodied in the constitution. I don't think it's a good idea to treat that balance as synonymous with justice, or even as some minor aspect of justice, because that treatment (say, calling the one uppercase Justice and the other lowercase justice, or one "ideal justice" and the other "civil justice") causes too much trouble when discussing the ways in which the two will inevitably come into conflict. There is a historical connection, and I have little doubt that the civil system was, for a long time and to many people, an attempt to model a practical civil institution on the model of a world ordered by justice, but in practical terms I don't think the civil system deals with justice at all; it redresses a particular social balance, and that's pretty much all it's equipped to do. That doesn't mean that we're incapable of achieving justice (to whatever extent we believe in justice -- and I think that, if we do believe in justice, it's a belief not unlike some people's religious belief), only that we can't rely on the civil system in order to achieve it.

That last clause, incidentally, is why I can think that it's wrong for some parents to withhold care for their children, but still question whether or not it's the place of the government to intervene. If the judicial system can substantiate intervention as part of a consistent institutional mission, then consider my question answered. I just have doubts about whether or not it can legitimately substantiate them in reference to justice, morality, or some other ideal that we might, for lack of a better word, term "abstract".

Until we, as a nation, decide to forgo the Constitution, it should continue to trump other ideologies should they be in conflict.

For the most part, I'd agree, and where we diverge on the matter seems to be the degree to which each of will take the cue that such conflicts give us to question the foundation provided by the Constitution. For my part, I would say that, assuming there is justice, consideration for that ideal should trump the Constitution, but that, so long as the Constitution is the operational foundation of judicial practice in America, the judicial system should fall back on Constitutional precedent rather than on any given ideal of what is just. The problem, it seems to me, is that our most common method for reconsidering the form, content, and place of the Constitution in our civil structure is that of making judicial rulings in reference to some quasi-Constitutional or non-Constitutional ideal. And that's a problem I'm not sure how to resolve, although I'm open to suggestions (or clarifications).

As a general answer to your "general inquiry"--and at the risk of making myself vulnerable to all kinds of criticism--when it comes to American jurisprudence, I've pretty much drank the cool-aid.

I have no problem with that, but having out in the open probably does explain why so much of our discussion in the related threads has been at variance. Not because I find myself inimical to American jurisprudence or American political philosophy, but because I tend to approach the matter from a more exterior position, as per my training in philosophy. So when you put before me an example about the state intervening in the case of parents withholding medical treatment for their child, I'm less likely to look at the question of what Constitutional provisions cover the matter as I am to look at it from the question of why we adhere to those provisions and whether or not we wouldn't do better to structure things another way. So far, that hasn't been your interest, but if you ever stray into that territory, you may find my comments more valuable, even if you disagree.

As long as we keep inquiring, and studying, and challenging, and arguing, we're progressing--and by progressing I don't mean that we are going anywhere, or even headed anywhere, just that the debate is alive and well.

And within a particular context, that's important, and I'm certainly glad that there are people pushing ideas to their logical and practical ends. But I'm entirely too aware of the history of error that often arises from pushing ideas along without occasionally taking a step back and reconsidering the entire idea. You ask me how a presumably humane institution like the early Church ends up imposing the Inquisition on most of Europe, and the simplest accurate answer I can give is that they constantly pushed their ideas forward in logical and practical ways, but failed to take that critical step backwards at the crucial junctures.

I understand this a dogma of my own, that I can be labeled a religious-like fanatic of the Constitution

Maybe by someone who equates religion with dogmatism and fervour. I have a more functional definition of religion.

George: I like the idea of "justice as fairness" from John Rawls' A Theory of Justice.

Not having read Rawls' book, I may be misinterpreting just what he means by that, but given "justice as fairness" to be a fairly straightforward maxim, I'd have to disagree.

Most of the time, though there have been some notable exceptions like the failed experiment with prohibition, it seems to be moving toward social justice.

Here's another tangent (and another possible book suggestion), but I'm not sure that prohibition was a failed experiment. Given what little I've read about American alcohol consumption prior to Prohibition, I'd say some sort of legal curb on consumption probably was necessary, and it may be that an outright ban was the most practical way for the government to make that curb. At any rate, it's a subject I'd like to know more about, and in this case Michael Pollan has (in "The Omnivore's Dilemma") suggested a promising title: "The Alcoholic Republic". I'd be interested in reading both that and the Rawls book, and I don't see any particular reason why we should leave that for official discussion -- particularly since the books I most want to read almost never get chosen.




Mon Jul 09, 2007 4:09 pm
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