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EDGAR MARTINEZ ROUNDTABLE: Why is the Constitution binding?
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Date: September 27th, 2004 7:08 PM Author: Azure Adulterous Theater Stage Party Of The First Part Why is the constitution binding on us: on the citizenry, on the courts, on the legislature, on the federal executive, on the states? We talk a great deal on this board about individual rights. Where do those rights come from? How are they protected? When we talk about "activist" judges misusing the constitution, how can we be sure what their obligations are? In short, I'm looking for a simple answer: why does the constitution limit the permissible actions of our elected representatives? Why do they have to respect the rights delineated in the constitution, and why should judges be limited to any particular reading of that document?
Why is it binding?
Discuss. |
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Date: September 27th, 2004 7:09 PM Author: marvelous pearly blood rage this must count for flame in federalist society circles. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399440) |
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Date: September 27th, 2004 7:10 PM Author: Azure Adulterous Theater Stage Party Of The First Part I'd like to hear an answer from any point on the political spectrum. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399444) |
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Date: September 27th, 2004 7:11 PM Author: marvelous pearly blood rage sorry. well, isn't the constitution the organic law of the land and so, unlike Britain, lawmakers and judges are bound by the general tenets of that document? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399452) |
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Date: September 27th, 2004 7:12 PM Author: Azure Adulterous Theater Stage Party Of The First Part But why? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399454) |
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Date: September 27th, 2004 7:14 PM Author: marvelous pearly blood rage because that's the system? what are you getting at? sure, someone could go Nixon and say fuck the Constitution, but presumably the rest of the branches of government would eventually discourage them from doing so via impeachment. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399470) |
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Date: September 27th, 2004 7:16 PM Author: Azure Adulterous Theater Stage Party Of The First Part So, it's just the coercive pressure of other branches? "Because that's the system" doesn't really answer the question, does it? Would you agree that the president is not required to follow the constitution if the other branches were unwilling to confront him? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399477) |
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Date: September 27th, 2004 7:20 PM Author: marvelous pearly blood rage yeah, i think that's fair. of course the president is required to follow the constitution, but the force of that requirement depends on the other two branches. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399497) |
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Date: September 27th, 2004 7:27 PM Author: Azure Adulterous Theater Stage Party Of The First Part I'm not sure that most people would agree with you. What if tommorrow, a certain attorney general issued an order that every brown-skinned person in the US should be rounded up and imprisoned to aid the war on terror. Suppose further that, perhaps fearing the political consequences of opposition, Congress cannot muster a consensus to oppose the administration. Suppose finally that, perhaps fearing (further) retribution, no brown-skinned person is willing to challenge the AG's actions in the courts. Is the AG's directive really constitutional? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399540) |
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Date: October 10th, 2004 11:31 PM Author: pontificating private investor crackhouse "Is the AG's directive really constitutional?"
Non-sequiter. Whether the AG's actions are constitutional or not isn't a sticking point. It's whether *if* his actions *are* unconstitutional it even matters. |
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Date: September 27th, 2004 7:18 PM Author: chestnut laughsome parlour voyeur Because it was ratified by the states, and the states are bound to uphold it. What is a state? The legislators who are elected to write the documents that create the government and law of the state. These legislators are elected by voters, citizens. By virtue of citizenship of any state, and thereby the United States, a citizen is subject to the law. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399491) |
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Date: September 27th, 2004 7:30 PM Author: Azure Adulterous Theater Stage Party Of The First Part But, as I pointed out below, it can be said of the vast majority of the document that nobody ALIVE agreed to it. You and I never agreed to it, and neither did our elected representatives. Surely we wouldn't agree to be bound, for example, by the dictates of the Belgian parliament? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399553) |
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Date: September 27th, 2004 7:34 PM Author: chestnut laughsome parlour voyeur I don't think it matters whether any individual agrees to it. It is a question of citizenship. The law is binding on any citizen.
Tax protestors constantly make the argument that they are not "citizens" of the United States Government, and therefore are not subject to Federal taxation. This argument had been disposed of, time and time again. By virtue of citizenship, individuals are subject to the Constitution - the 16th Amendment, in particular. |
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Date: September 27th, 2004 7:35 PM Author: Azure Adulterous Theater Stage Party Of The First Part But why is it the law? If nobody alive voted for it, and we do not have the power to change it by majority vote, how can it possibly bind us? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399583) |
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Date: September 28th, 2004 2:45 AM Author: Hilarious Useless Pervert Office "The law is binding on any citizen."
Well, yeah. The government has more power than individual citizens.
"This argument had been disposed of, time and time again."
...by the legal aparatus. It hasn't taken some universally recognized hit. |
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Date: September 27th, 2004 7:28 PM Author: multi-colored church building headpube one would hope so. but many people still ask for interpretations based on the intent of the framers -- like Hamilton, Jefferson would approve of what's going on in society now. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399545) |
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Date: September 27th, 2004 7:17 PM Author: multi-colored church building headpube Social Contract, Rousseau (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399481) |
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Date: September 27th, 2004 7:23 PM Author: Startled property factory reset button I think the simple answer to your question is something like that the Constitution is binding on us through our collective consent. In other words, if tomorrow, we as a society decided we wanted to scrap the constitutional order that we created, maintained, and evolved over the last two hundred years, then we could do just that, and without even bothering with the amendment process.
By the way, the Preamble of the Constitution basically implies the same thing: "We the people of the United States" established the Constitution, and that implies that "We the people" could establish something else in its place.
The tricky part, of course, is that the Constitution does not require specific individual consent. But that is the nature of societies: they sometimes decide things without necessarily getting the consent of each member, and those decisions are nonetheless treated as binding on each member of that society. |
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Date: September 27th, 2004 7:25 PM Author: Azure Adulterous Theater Stage Party Of The First Part Interesting answer, but if the constitution is only binding so long as a majority of people agree it is binding, is it really binding at all? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399524) |
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Date: September 27th, 2004 7:26 PM Author: marvelous pearly blood rage or, since the majority of people don't vote, are they withdrawing their support for it? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399527) |
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Date: September 27th, 2004 7:26 PM Author: Mustard Alcoholic Forum I guess the amendment procedure goes out the window. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399533) |
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Date: September 27th, 2004 7:28 PM Author: Azure Adulterous Theater Stage Party Of The First Part Right, which is another way of restating the first question: why do we need to follow the contitution's commands pertaining to its own amendment? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399547) |
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Date: September 27th, 2004 7:28 PM Author: Mustard Alcoholic Forum Elitism? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399549) |
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Date: September 27th, 2004 7:38 PM Author: Startled property factory reset button I wasn't quite suggesting majoritarianism was the only way for a society to make basic civic decisions collectively. Collective decision-making can take many different forms, and the notion that a collective decision is made if and only if a majority affirms that decision is relevant to only some of those forms.
But in general, I think there is some sense in which it is true the Constitution is not completely binding on our society. Again, if the basic idea is that "We the people" originally created this system of governance, then presumably we can do so again. In other words, we do not actually need to specify the details of that process (eg, majoritarianism) to note that it should be possible to repeat it in some form and start over with something different.
On the other hand, that does not exactly mean it is not "binding at all". Even as individuals, we are "autonomous", meaning literally that we are self-lawgiving. In other words, through an act of will I can bind myself to do something. The mere fact that I can unbind myself through another act of will does not imply the first act of will is ineffective ... because that second of act of will may never come.
Similarly, societies that bind themselves to certain orders can still be thought of as bound ... until they unbind themselves. Again, that does not negate the fact that they are bound by the first act of binding, because that second act of unbinding may never come.
So, for now we are bound by the Constitution. Tomorrow, we may decide collectively to unbind ourselves. But if not, we will be continue to be bound by the Constitution tomorrow, and that will continue until we actually do otherwise. |
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Date: September 27th, 2004 7:42 PM Author: Azure Adulterous Theater Stage Party Of The First Part I guess I don't see how the constitution is binding at all if it can simply be unloaded. The binding force of the constitution really only affects the people outside the "we," doesn't it? And if so, aren't they really just bound by the coercive pressure of the majority? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399596) |
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Date: September 27th, 2004 7:56 PM Author: Startled property factory reset button Again, I think it depends on what you mean by "binding". If you mean "binding in a way that cannot be undone by society", then it isn't binding on anyone. But if you mean "binding as long as it is not undone by society", then it is binding on everyone in our society.
As I noted above, the only really tricky part, at least at this level of abstraction, is that the binding and unbinding are being done collectively, by society, and yet the rules apply to individuals. In that sense, an application of the rules in a certain individual could be "coercive", in that society will impose this collective decision on individuals without their prior consent. And, they will indeed use force if necessary (eg, if the individual wants to resist with force).
Finally, I would once again note that this is not necessarily a majoritarian process, because collective decision-making need not take a form to which majoritarianism applies. So, it may be a mistake to talk about the majority imposing order on the minority. Indeed, under some circumstances, a numerical minority could be imposing its will on the majority ... again, it all depends on the nature of collective-decision making in that society. |
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Date: September 27th, 2004 7:57 PM Author: Azure Adulterous Theater Stage Party Of The First Part I see what you're saying. I guess I just mean "binding": in that a collective, majority decision to scrap it wouldn't square with the dictates that most people seem to agree govern changes to the document. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399742) |
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Date: September 27th, 2004 8:02 PM Author: Startled property factory reset button Well, those are two different issues.
The amendment process is obviously internal to the order imposed by the Constitution. So, when we go through that process, we are making modifications to that order, but not rejecting that order. In short, amendments do not in any way make the Constitutional order less binding.
What you are talking about is not amendment, but rather a rejection of the entire order itself by society. Society does not need to follow the amendment process to do that, because the amendment process itself is part of the order it is hypothetically rejecting. |
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Date: September 27th, 2004 8:02 PM Author: Azure Adulterous Theater Stage Party Of The First Part I guess I don't see how it's binding if the citizenry can simply unburden itself like you suggest. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399782) |
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Date: September 27th, 2004 8:06 PM Author: Startled property factory reset button It isn't binding, in one sense of that term.
But it is binding in another. Which sense you pick is just semantics. |
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Date: September 27th, 2004 8:09 PM Author: Azure Adulterous Theater Stage Party Of The First Part Let me rephrase then: why should we feel obliged not to enact, by majority legislation, laws contrary to the document? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399826) |
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Date: September 27th, 2004 8:13 PM Author: Startled property factory reset button Again, to me this is like asking why I should feel obliged to keep my promises. I am obliged to keep my promises because I will that I am obliged. Similarly, as a society we are bound to the Constitutional order because we collectively bind ourselves to do so.
So, if we collectively decide to dump the Constitution and go with an all-powerful legislature with a majoritarian scheme, then we can do that. But we haven't decided to do that in fact. Instead, we have continued to support the Constitutional order. |
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Date: October 10th, 2004 11:35 PM Author: pontificating private investor crackhouse You are obliged to keep your promises if you consider the term 'obligation' to be meaningful, not because you will obligation. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1468400) |
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Date: March 3rd, 2007 11:13 PM Author: Hairraiser Hideous Locus Idea He Suggested uh no.
You oblige to keep your promises when you both consider the term to be meaninful and will yourself to so oblige.
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Date: September 28th, 2004 2:48 AM Author: Hilarious Useless Pervert Office "why should we feel obliged not to enact, by majority legislation, laws contrary to the document?"
Because lots and lots of people have great faith in the document, faith that surpasses the particular legislation.
They think the document is good for them.
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Date: September 28th, 2004 2:43 AM Author: Hilarious Useless Pervert Office "is it really binding at all?"
It's conditionally binding. |
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Date: September 27th, 2004 7:27 PM Author: chestnut laughsome parlour voyeur That's all well and good, but it does not actually answer the question. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399543) |
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Date: September 27th, 2004 7:47 PM Author: Startled property factory reset button I think it depends on what sort of answer you are looking for.
Above, I draw an analogy between this sort of thing and individual acts of will. To make the analogy more specific, suppose I promise to pick someone up at the airport, and I resolve to keep my promise. Is this promise "binding"? If so, why?
One way to answer that question is to look for some sort of higher authority or system of incentives that will "make me" keep my promise. But I think that is the wrong direction to look. After all, that system of incentives or higher authority really just sets the "price" for breaking my promise ... it does not prevent me from breaking it if I am willing to pay that "price".
Instead, I think such a promise is binding because I am autonomous, and thus capable of binding myself to do something through an act of will. I think it is fine to wonder to what extent that means my promise is really binding, since I could in theory change my mind ... but that is as binding as it is going to get, since I am indeed autonomous.
Similarly, societies are only bound by things like Constitutions insofar as they collectively bind themselves. Again, that may cause you to wonder to what extent a society is then truly bound, since it might collectively decide to unbind itself ... but again, that is as binding as it going to get, because societies are also autonomous in their own way. |
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Date: September 28th, 2004 2:47 AM Author: Hilarious Useless Pervert Office "...and those decisions are nonetheless treated as binding on each member of that society."
And that's enforced with various carrots and sticks. Be good and we'll give you X. Be bad and we'll give you Y.
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Date: September 28th, 2004 8:58 AM Author: Startled property factory reset button True, but it is also partially self-enforcing, in that people will actually voluntarily submit to the contraints of law. That is an interesting phenomenum, and one that cannot be entirely explained by the promise of specific benefits/disincentives ... which is good, because we would need a much more intrusive, repressive, and expensive system of legal enforcement if people did not self-enforce the laws. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1402354) |
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Date: September 27th, 2004 7:50 PM Author: Hilarious Useless Pervert Office "Why is it binding?"
Because we agree it is. |
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Date: September 27th, 2004 7:51 PM Author: Azure Adulterous Theater Stage Party Of The First Part And if we ceased to agree it would cease to be binding? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399714) |
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Date: September 27th, 2004 7:57 PM Author: Startled property factory reset button Of course.
Imagine what that would really look like (if we collectively decided that it was no longer binding). There would be no power capable of forcing us to accept this order. |
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Date: September 27th, 2004 7:59 PM Author: Azure Adulterous Theater Stage Party Of The First Part I guess the supreme court might, and the president/military might follow suit. What if it were only a portion of the constitution we collectively decided was not desirable? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399759) |
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Date: September 27th, 2004 8:05 PM Author: Startled property factory reset button Well, the Supreme Court, President, and military are all made up of individuals within our society. If they were all part of the rejection of this order, then they would not oppose it.
Of course, we can imagine a breakdown of society where powerful forces within society both want and oppose change respectively. The result in such a case could be a Civil War ... and we have had one of those, of course.
But if all the people of all the States had wanted to join the Confederacy, then of course there would have been no Civil War, and the Constitutional order as we know it would have ceased to exist. |
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Date: September 27th, 2004 8:09 PM Author: Startled property factory reset button Sorry, and to reply to the second part of your question:
We could collectively decide to get rid of only a "portion", but it would be important to note that if we did that without going through the amendment process, we would really be implicitly rejecting the entire thing first, and then putting back into place just the parts that we wanted to keep. |
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Date: September 27th, 2004 8:11 PM Author: Azure Adulterous Theater Stage Party Of The First Part So it seems that either we're not bound, or we are. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399833) |
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Date: September 27th, 2004 8:15 PM Author: Startled property factory reset button That is just a word game ... like saying I put my money in a bank (the financial institution), but not in a bank (the side of a river).
We are bound in one sense, but not another. |
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Date: September 27th, 2004 8:17 PM Author: Azure Adulterous Theater Stage Party Of The First Part Between you and I, it seems to have devolved that way. I don't see how your sense of "binding" works. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399850) |
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Date: September 27th, 2004 8:45 PM Author: Startled property factory reset button What do you mean by "works"?
Clearly, it has "worked" in some sense in our society. Individuals have challenged the Constitutional order, including some highly-placed officials. Once, we had an entire Civil War. And yet, the Consitutional order has remained in place.
But maybe you mean this should not count as "binding", because if we as a society had made different decisions at those various junctures, the Constitutional order would have ceased to exist. Again, though, that is just semantics. |
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Date: September 27th, 2004 8:48 PM Author: Azure Adulterous Theater Stage Party Of The First Part Well, I think I mean to exclude, definitionally, the notion that we might decide not to follow the constitution and yet nevertheless consider it binding for present purposes. I would take that to mean that we are not bound. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399965) |
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Date: September 27th, 2004 9:01 PM Author: Startled property factory reset button Right, as I said above, "If you mean 'binding in a way that cannot be undone by society', then it isn't binding on anyone."
So, the really simple answer is that the Constitution is not in fact binding in the sense of "binding" that you just defined.
But, of course, as long as "we the people" keep deciding to follow the Constitution, that sense in which the Constitution is not binding is moot. |
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Date: September 27th, 2004 7:58 PM Author: Hilarious Useless Pervert Office Yes. It would no longer have legitimacy. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399747) |
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Date: September 27th, 2004 7:58 PM Author: Azure Adulterous Theater Stage Party Of The First Part Interesting. What if a majority of americans were opposed only to part of it, would that part lack legitimacy? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399754) |
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Date: September 27th, 2004 8:47 PM Author: Wonderful main people Hasn't this happened?
More to the debate, however, to the extent that one part can be severed without injuring another part, yes. However, I'm not sure which parts you can sever from the Constitution without violating another portion. |
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Date: September 27th, 2004 8:50 PM Author: Azure Adulterous Theater Stage Party Of The First Part I'm not sure either. Say, for example, that a majority of americans could be persuaded that there were sound policy reasons for a tax on exports. Would it or wouldn't it be legitimate to legislate such a tax? note: export taxes are specifically proscribed by the constitution. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399972) |
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Date: September 27th, 2004 8:54 PM Author: Wonderful main people I'm guessing no, because there exists other language which makes the proscription legitimate. Ultimately, I think it comes down to the "law of the land" language, and the viewpoint of state ratification (almost as a quasi-peace accord among states/interstate contract). (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399993) |
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Date: September 27th, 2004 9:07 PM Author: Azure Adulterous Theater Stage Party Of The First Part Of course that re-invites the question of why a document that was agreed to by an unrepresentative group of people who are all dead would restrict this "people"'s right of self determination.
"because there exists other language which makes the proscription legitimate."
Certainly the founders INTENDED the constitution to be binding. But that says nothing about why we should feel bound, does it? |
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Date: September 27th, 2004 9:10 PM Author: Startled property factory reset button Nope. Nothing can tell us that we "should feel bound" besides ourselves. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400080) |
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Date: September 27th, 2004 9:11 PM Author: Wonderful main people On a basic level, we should feel bound because of impressive resources held by those who would punish us should we choose to disobey it. I think that's true of everyone in the country, even the President.
I'm guessing I really don't know what you're getting at, admittedly I haven't read much of the thread. |
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Date: September 27th, 2004 9:14 PM Author: Azure Adulterous Theater Stage Party Of The First Part Well, if it's only coercive force of the powerful that keeps the constitution in effect, then we don't really have constitutional rule, do we? We have a system in which the weak are forced to obey the powerful: not because of any founding document, precommitment strategy, or, god forbid, consent, but because some are weak and others are strong. It only looks ok because the powerful have generally purported to uphold the constitution most people like the document. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400104) |
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Date: September 27th, 2004 9:19 PM Author: Wonderful main people "We have a system in which the weak are forced to obey the powerful: "
I specifically named the President as one who cannot evade its requirements. Certainly he qualifies as powerful. |
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Date: September 27th, 2004 9:21 PM Author: Azure Adulterous Theater Stage Party Of The First Part I'm not sure I understand. He's powerful, but by your model it's at least partly coercion that keeps him obedient, isn't it? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400157) |
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Date: September 27th, 2004 9:29 PM Author: Wonderful main people Coercion of the many, not necessarily the individually powerful. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400227) |
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Date: September 27th, 2004 9:20 PM Author: Startled property factory reset button As individuals or even in largish groups, no one has the power to impose their will on society to that extent.
So, coercion at this root level is really just the coercion of society with respect to the individual. |
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Date: September 28th, 2004 2:54 AM Author: Hilarious Useless Pervert Office "Well, if it's only coercive force of the powerful that keeps the constitution in effect, then we don't really have constitutional rule, do we?"
All government is coercive. Constitutional rule is a way of ordering how that coercion is applied.
"We have a system in which the weak are forced to obey the powerful"
Sure, as long as "the powerful" can include some abstract entities."
"not because of any founding document, precommitment strategy, or, god forbid, consent, but because some are weak and others are strong."
The document, at least at some point, was an expression of the values the strong had. Those values serve as a framework within which carrots and sticks are allocated. But, yeah, enforcement is ultimately coercion. However, that coercion occurs for reasons. Those reasons may or may not be currently found within the document. |
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Date: September 27th, 2004 9:17 PM Author: Startled property factory reset button That only works for individuals, and really only sets the "price" for disobedience.
So, if "we" in the collective sense (as in every member of our society right now) decide to dump the Constitution entirely, there will be no one to stop the collective us from doing so. |
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Date: September 27th, 2004 9:20 PM Author: Wonderful main people Nope, not at all. Constitutions get torn up all the time. I don't think ours is bulletproof. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400151) |
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Date: September 27th, 2004 9:24 PM Author: Startled property factory reset button Indeed.
In fact, ours has lasted an unusually long time with relatively few major changes. Partially that is good design, but a lot of that is simply a matter of our society liking stability and civil peace (which lets us get on with our personal pursuits of happiness). |
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Date: September 27th, 2004 9:06 PM Author: Startled property factory reset button You haven't yet reached the crucial issue in this hypothetical. It has to be more than a majority thinking there are good policy reasons for a certain act of government. Rather, as a society we must first decide that in order to allow that act on those grounds we will set aside the current Constitutional order. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400060) |
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Date: September 27th, 2004 8:58 PM Author: Startled property factory reset button Obviously, we can't explicitly "sever" any part of the Constitution without either following Article V, or severing Article V too.
And conceptually, I think that if we "sever" Article V, we really just dumped the whole thing and started over, because the underlying logic of the entire Constitution is that the rules and limits in the Constitution are the "supreme law of the land" (see Article VI), and for the Constitution to fill that role the process of changing it cannot be left to any other body in the Constitution (namely, Congress, the President, the Courts, or the States). And if you get rid of the amendment process entirely, how can you preserve the rest of the Constititution as the "supreme law of the land"? |
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Date: September 28th, 2004 2:43 AM Author: Hilarious Useless Pervert Office "What if a majority of americans were opposed only to part of it, would that part lack legitimacy?"
I think I'd be confident in saying that if the majority of political power in American were against it, it would probably lack legitimacy.
It might be a messier debate (but probably a more accurate debate) if we're talking about majorities of Americans.
One would also have to consider that overarching principles could, depending on the strength to which they're adhered, temper opposition to some particulars. For instance, belief in procedural fairness as defined by law might be stronger than the belief in the outcome the produced. |
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Date: January 3rd, 2006 9:38 PM Author: Provocative hunting ground depends on what you mean by "we"
majority agreemnet is not enough. If 3/4 of the governors of the states and 2/3 of congress. or soemthing like that. The specifics are in, well, the constitution. |
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Date: March 13th, 2007 10:25 PM Author: Soggy yellow ceo Shut the fuck up you pretentious assclown! (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7749990) |
Date: September 27th, 2004 7:17 PM Author: Frozen library roommate Because we aren't uncivilized animals who throw a fucking coup everytime we are pissed off at one another.
Oh and cause it was ratified by the people. |
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Date: September 27th, 2004 7:29 PM Author: Azure Adulterous Theater Stage Party Of The First Part What people? It can be said of the vast majority of the document that nobody alive had a say in its enactment. In a society that places a high value on collective will, and rightly so, why is that ok? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399550) |
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Date: September 27th, 2004 7:31 PM Author: Frozen library roommate Because the Constitution can be amended by elected officials today. The framers had enough foresight to recognize this necessity. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399562) |
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Date: September 27th, 2004 7:33 PM Author: Azure Adulterous Theater Stage Party Of The First Part But not by a simple majority. The collective will of long-dead people binds the living. It might also be added that this was not what would be regarded today as a LEGAL expression of collective will because it excluded a majority of the population: most prominently women and blacks. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399573) |
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Date: September 27th, 2004 8:10 PM Author: Startled property factory reset button I agree ... the people at the time cannot bind us now. We have to be binding ourselves ... which, of course, we are. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399829) |
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Date: September 27th, 2004 8:12 PM Author: Azure Adulterous Theater Stage Party Of The First Part SO far, the roundtable series rocks. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399836) |
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Date: September 27th, 2004 8:43 PM Author: Violent khaki pisswyrm whorehouse I actually completely agree. Color me impressed. This is an excellent question. Since I've read Hart (as I suspect you have), I'll pass on answering, but, really, good job. *high five* (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399951) |
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Date: September 27th, 2004 8:44 PM Author: Azure Adulterous Theater Stage Party Of The First Part *high five* Though, of course, I'd welcome your contribution regardless of what you've read. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399952) |
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Date: September 27th, 2004 9:00 PM Author: massive police squad It's alright. Good question though. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400023) |
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Date: September 27th, 2004 9:05 PM Author: Azure Adulterous Theater Stage Party Of The First Part I think so. I mean, we get into all sorts of discussions on this board regarding the work that judges do -- particularly constitutional rulings. Sometimes they're accused of ovverreading and overreaching and other times they're accused of reading parts they don't like out of the constitution. But before we can level charges like that, we need some conception of the proper way to interpret the constitution. Underlying that question, in my opinion, is the question of why the document is binding at all. Because if it weren't, criticism of constitutional rulings would be presumptively invalid, no?
Anyway, I thought it would be a good place to start out series of roundtables. |
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Date: September 27th, 2004 8:55 PM Author: honey-headed partner spot pretty impressive, especially the professor's pedagogical skills. strange to see a whole thread without resort to schtick or invective. i predict resentment from those who feel as if they cant take part because the discussion is a little too swift and informed. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1399996) |
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Date: September 27th, 2004 9:22 PM Author: Comical umber kitchen Why do a great many of the constitutional protections apply to illegal aliens? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400163) |
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Date: September 27th, 2004 9:27 PM Author: Azure Adulterous Theater Stage Party Of The First Part I guess the easy answer is that it's because they're restrictions on what the government may do, not simply individual rights. Some of it is a restriction on what PEOPLE may do. Convenience aside, surely you wouldn't want to live in a country where one might ENSLAVE an illegal alien.
Plus, there's also the issue of sorting out who's an illegal alien. You need some due process to determine who belongs here and who doesn't. |
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Date: September 27th, 2004 9:28 PM Author: Comical umber kitchen Good answer. I just don't like illegal aliens. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400218) |
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Date: September 27th, 2004 9:29 PM Author: Azure Adulterous Theater Stage Party Of The First Part Nobody does. Fuck those greaseballs. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400228) |
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Date: September 27th, 2004 9:36 PM Author: Comical umber kitchen This is the kind of meaningful discourse I was hoping to find around this table. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400279) |
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Date: September 27th, 2004 9:28 PM Author: Startled property factory reset button A lot of that is simply a textual issue. At crucial points, such as in the Fifth Amendment and the last two clauses of Section 1 of the Fourteenth Amendment, the Constitution refers to "persons" generically (and not, say, citizens or lawful residents). (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400219) |
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Date: September 27th, 2004 9:37 PM Author: Comical umber kitchen Fuck Jefferson.
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Date: September 27th, 2004 9:42 PM Author: Startled property factory reset button I think you mean Madison. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400339) |
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Date: September 27th, 2004 9:52 PM Author: Comical umber kitchen His wife makes good donuts, so I give him a break. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400419) |
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Date: September 27th, 2004 9:25 PM Author: massive police squad Because our forefathers made a decision that it was better to be governed by a document than by the whims of a few powerful elites. That document has turned out to be remarkably flexible, having withstood severe regional differences leading to a civil war and 27 amendments. The basic structure still stands though. It's a testament to the brilliance of the founders that they created such a document. I also think there's a profound cultural reason. The Cons't began America's history of exceptionalism and it's so ingrained in us that many hold it more dear than religion.
But, ultimately, if people wanted to rebel, they could. See the Civil War. |
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Date: September 27th, 2004 9:28 PM Author: Azure Adulterous Theater Stage Party Of The First Part As I said elsewhere, certainly the founders intended the constitution to be binding, but that says nothing about why we should be bound.
As for its brilliance, most people would agree that that's generally so, but if it stopped seeming so brilliant, would it be any less binding? |
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Date: September 27th, 2004 9:36 PM Author: Startled property factory reset button As I note below, more than anything else the Constitution is really about a certain core philosophy of governance. If we ever decided as a society to reject that core philosophy, that would be the end of the Constitutional order as we know it. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400278) |
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Date: September 27th, 2004 9:39 PM Author: Azure Adulterous Theater Stage Party Of The First Part Does that read of the constitution lead you to conclude anything about how judges *ought* to decide constitutional cases? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400309) |
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Date: September 27th, 2004 9:49 PM Author: Startled property factory reset button Actually, yes.
I think the Constitution was designed to be vague and to give judges pretty wide discretion within the scope of their power to decide cases. But I also think the founders intended for this to be a "common law" process, and expected that judges would have due regard for precedents and settled expectations (and, of course, for the ultimate authority of the Supreme Court).
For the most part, this is in fact how Constitutional law has developed, and so in the broader context of this discussion, this "original intent" of the founders with respect to the judicial process has been continuously re-ratified by our society. |
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Date: September 28th, 2004 3:00 AM Author: Hilarious Useless Pervert Office "As for its brilliance, most people would agree that that's generally so,"
Yes, the forefathers were smart dudes, but we also have to keep in mind that there's a strong element of self-fulfilling prophesy going on here. We want the Constitution to work (however we define that at the time), and so it's more likely to work than if we didn't have a desire to see it stand the tests of time.
"but if it stopped seeming so brilliant, would it be any less binding?"
Necessarily? No. In effect, it seems likely because it would lose legitimacy.
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Date: September 27th, 2004 9:34 PM Author: Startled property factory reset button Indeed, and I think even more than for their brilliance, the "founders" should be credited for their humility. They did not try to describe an ideal society or attempt to solve every problem. Instead, they mostly focused on what we might call basic structural and procedural issues, and trusted future legislators, Presidents, judges, and state governments to solve specific problems.
In other words, the Constitution is more philosophy than policy, and that has served it well. |
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Date: September 27th, 2004 9:37 PM Author: Azure Adulterous Theater Stage Party Of The First Part True, but only to an extent. After all, a president can only be elected twice, export taxes are unconstitutional, bills of attainder are not allowed, and there are no noble titles. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400290) |
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Date: September 27th, 2004 9:39 PM Author: massive police squad Presidential term limits were added as an amendment. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400304) |
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Date: September 27th, 2004 9:41 PM Author: Azure Adulterous Theater Stage Party Of The First Part And? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400326) |
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Date: September 27th, 2004 9:44 PM Author: massive police squad No great consequence, we were just talking about the founders.
And, term limits on the President are certainly fit within the framework of the Cons't. A singular executive is the branch most likely to aggrandize its power. |
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Date: September 27th, 2004 9:52 PM Author: Startled property factory reset button Sure, there are some specific policies in the Constitution, and over time some have been added, and some removed.
But in comparison to other constitutions, ours is very light on such matters. In contrast, there is some pretty sweeping language with very little in the way of specific explanation. |
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Date: September 27th, 2004 9:38 PM Author: massive police squad Definitely. They understood human nature very well and thought about it a lot. This is a marked contrast to the French Revolution. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400295) |
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Date: September 27th, 2004 9:57 PM Author: Startled property factory reset button Well, the French can't be accused of not thinking a lot about human nature. Again, I think the ultimate contrast (at least by the time you get to the Napoleonic Code) is that relative to the French, Americans distrust the notion that anyone can really be considered a global expert on something like "human nature".
So, it is not so much that the founders thought they knew human nature better than anyone else in any sort of detail. Indeed, they spent a lot of time limiting the very powers that they as individuals would soon have, making it difficult for any self-proclaimed experts in human nature to impose their will on society.
Again, that indicates humility more than expertise ... although humility, as Socrates pointed out, is a very high form of wisdom. |
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Date: September 27th, 2004 10:16 PM Author: massive police squad Our founder understood what a bunch of louts we are. The French didn't. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400570) |
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Date: September 27th, 2004 10:31 PM Author: Startled property factory reset button Hmm, in many ways the French developed a more restrictive systems of laws (eg, through the Napoleonic Code).
In that sense, I think the French are actually far less trusting of "human nature". |
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Date: September 27th, 2004 9:32 PM Author: Electric Carnelian Stage Hairy Legs Ratified by the states at the Constitutional Convention, sucka. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400249) |
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Date: September 27th, 2004 9:34 PM Author: Azure Adulterous Theater Stage Party Of The First Part I didn't vote for the thing, punkass. And it was ratified at the several ratifying conventions, not the Constitutional Convention (i.e., the one in Philadelphia). (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400265) |
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Date: September 27th, 2004 9:40 PM Author: Startled property factory reset button Indeed. In fact, I think Article VII is actually best viewed as more of a limitation than as an empowerment.
In other words, the Preamble is where we get a sense of what makes the Constitution binding (insofar as it is). |
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Date: September 27th, 2004 9:42 PM Author: massive police squad So, the only laws that apply to you are ones that you directly voted for? Or ones where you were represented in the legislature, i.e. of voting age? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400338) |
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Date: September 27th, 2004 9:43 PM Author: Azure Adulterous Theater Stage Party Of The First Part Well, that doesn't *seem* to be the situation. I think we agree that I am *not* permitted to have slaves and that I cannot be elected president for a third term, but I'm not sure why. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400348) |
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Date: September 27th, 2004 9:45 PM Author: massive police squad No, that's not the situation. I'm trying to feel out the position you're taking. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1400370) |
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Date: September 28th, 2004 3:04 PM Author: Azure Adulterous Theater Stage Party Of The First Part I HEREBY DECLARE THE FIRST ROUNDTABLE A STUNNING SUCCESS!!!! MORE TO FOLLOW! (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1403918) |
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Date: October 10th, 2004 11:17 PM Author: Hairless charismatic house multi-billionaire dgr hs vry bg blls. lck thm. hth. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#1468286) |
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Date: January 3rd, 2006 9:18 PM Author: Stirring ticket booth associate it ain't (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#4725938) |
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Date: January 3rd, 2006 9:35 PM Author: Provocative hunting ground See Marbury v. Madison. Yawn.
It's binding because the constitutiion says it is binding and because the gevernment set up safeguards such as the SC to keep it so. And maybe also because the safeguard known as the SC has taken themselves very seriously from a very early point in our history, setting the precedent for the future. |
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Date: January 3rd, 2006 9:37 PM Author: Rambunctious pea-brained cruise ship athletic conference hahahaha (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#4726172) |
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Date: January 3rd, 2006 9:38 PM Author: pearl talented den The people with all the tanks and bombs say it's binding. Therefore it's binding. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#4726200) |
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Date: January 3rd, 2006 9:43 PM Author: anal hominid lol (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#4726264) |
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Date: January 3rd, 2006 9:54 PM Author: Trip sable nursing home toaster "i predict resentment from those who feel as if they cant take part because the discussion is a little too swift and informed."
fuck you renada, you can *bind* your tongue to my *balls*. |
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Date: January 3rd, 2006 10:15 PM Author: high-end persian internal respiration because that's the law. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#4726643) |
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Date: March 3rd, 2007 6:45 PM Author: Hot thriller water buffalo Excellent work, Professor! It's only binding because the guys with the guns say it's binding. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703508) |
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Date: March 3rd, 2007 7:12 PM Author: charcoal indian lodge It is binding because we have all implicitly accepted by living in the United States and reaping the benefits. By accepting the benefits of being a citizen (national/local defense, economic and political liberty and public schools), you have implicitly accepted the rules that the state/nation has adopted. A person cannot reject all the benefits and still not be bound by the constitution while living within the US borders because those benefits always exist. E.g., using the roads, police protection (even if they never call the cops, the police still deter criminals). Even if they were to live in the middle of nowhere, grow their own food and are home schooled, they have accepted because national defense still protects them from foriegn invaders. |
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Date: March 3rd, 2007 7:16 PM Author: Hot thriller water buffalo Nonsense. You have no opportunity to accept or reject the constitution, and if you were given an opportunity to reject it, it would cease to be binding. Surely we could have police and roads without a constitution. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703607) |
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Date: March 3rd, 2007 7:27 PM Author: charcoal indian lodge You do have an opportunity to reject the constitution, move out of the US. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703638) |
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Date: March 3rd, 2007 7:29 PM Author: Hot thriller water buffalo You're just restating the quesiton. Why is the constitution binding on people in America? Your answer seems to be "because you're in America." (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703647) |
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Date: March 3rd, 2007 7:56 PM Author: charcoal indian lodge That is a gross over-simplification (and my guess is an ad hominem). It is an IMPLIED CONTRACT. Gov't offers protection (and other benefits) subject to following the constitution and laws. Acceptance is taking those benefits. And, you cannot reject all the benefits while still remaining in the US. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703765) |
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Date: March 3rd, 2007 9:47 PM Author: Hot thriller water buffalo So, it's an implied contract because you wrote IMPLIED CONTRACT in caps? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7704272) |
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Date: March 4th, 2007 1:01 PM Author: charcoal indian lodge No, I wrote in caps because you seemed to miss the point. And instead of coming up with a cogent response, you merely pointed out that I used caps. Good one! (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7706357) |
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Date: March 4th, 2007 1:18 PM Author: Hot thriller water buffalo It's just that your argument is entirely conclusory. It's the law in the U.S. because if you're in the U.S. that's the law that applies to you. I don't think that's the sort of discussion Professor Martinez was having.
Anyway, PEM was specifically referring to judges, legislators, and executives, not citizens. Your argument is right in one sense -- that is, if you commit treason in the US, guys with guns will come to your house and arrest you. In that sense, the constitution is obviously binding.
But that's not the question, the question is whether the constitution *ought* to be binding. And I don't think you answer that question at all. |
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Date: March 4th, 2007 1:30 PM Author: charcoal indian lodge Actually, the first sentence clearly included citizens. "Why is the constitution binding on us: on the citizenry...."
Also, every judge, legislator and executive is a citizen. Thus, they are bound by the same implied contract that all citizens/residents accept.
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Date: March 4th, 2007 1:34 PM Author: Hot thriller water buffalo fascinating (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7706472) |
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Date: March 4th, 2007 1:47 PM Author: charcoal indian lodge Alright dude, this has gone long enough. You cannot/will not address my argument. So far, you have only pointed out that I used caps or have rephrased my argument in such way that makes it conclusory. The argument is not live here and follow the rules. I will try and explain this slowly. It is that both parties recieved and exchanged material benefits which constitutes a contract. The terms/conditions of the the K are defined, in part, by the constitution, which has been accepted by every citizen by taking the benefits. And although most K's cannot be accepted by silence, a clear exception has always been accepting the benefits of the deal constitutes acceptance. Moreover, unjust enrichment would occur if people were to accept the benefits of the contract without accepting the limitations imposed. |
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Date: March 4th, 2007 3:57 PM Author: Hot thriller water buffalo I understood you the first 3 times you said this. Your point is unpersuasive for the reasons I've already given. Now you pretend not to understand where I answered you. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7707237) |
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Date: March 4th, 2007 5:31 PM Author: Soggy yellow ceo Maybe I can help. What is the source of the rule you're articulating - that there is an implied contract between Americans and ... somebody? (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7707590) |
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Date: March 4th, 2007 5:38 PM Author: charcoal indian lodge The people and the government (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7707624) |
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Date: March 4th, 2007 5:39 PM Author: Soggy yellow ceo Uh, no, you just made it up. In order to accept your argument, you have to accept your groundrules. That's called "begging the question," which is what EMD meant when he said your post was conclusory. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7707627) |
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Date: March 3rd, 2007 7:35 PM Author: Opaque Faggot Firefighter Trump Supporter Jefferson and Marshall had this debate. Marshall won. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703666) |
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Date: March 3rd, 2007 7:39 PM Author: Hot thriller water buffalo In remarkably unpersuasive fashion. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7703680) |
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Date: March 4th, 2007 10:22 PM Author: Big avocado step-uncle's house Hi Randy Barnett. (http://www.autoadmit.com/thread.php?thread_id=87464&forum_id=2#7709241) |