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Switch to Forum Live View Global influence of US Constitution declining
3 years ago  ::  Mar 05, 2012 - 6:58AM #41
CharikIeia
Posts: 8,301

Mar 5, 2012 -- 5:00AM, shmuelgoldstein wrote:


Mar 4, 2012 -- 2:34AM, CharikIeia wrote:

... It is very weird to see a people in the 21st century try living by a document forged in the 18th, basically.



Why?



Because this is not the 18th century.


The attempt typically comes with a good measure of denial of reality, with the assumption that recipes of the past will suffice in the present. But the present is different, the problems we face today are not the same problems people faced in earlier ages. The world we live in is not the same world that the old documents were made for.


Ultimately, you cannot escape present-day reality. Even if you try living by 18th century documents, what you inevitably will do is live by your present-day interpretation & projection of what the document meant to its writers. If you acknowledge that, you can just as well live without the document because your present-day understanding sufficiently captures your stance. If you don't acknowledge that, but assume you know exactly what the document means in time immemorial, as it were, you're dangerously delusional, in my view.

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3 years ago  ::  Mar 05, 2012 - 7:24AM #42
arielg
Posts: 9,116

Well said, Chari.  Fundamentally, the attempt to come up with fair guidelines is the same. The basic principles are always  the same.  But the application of those principles, the interpretations,  should change according to the times.


The writers of the American constitution did not see  a problem with slavery, for instance.  Today there is a very different  consciousness about it.

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3 years ago  ::  Mar 05, 2012 - 10:24AM #43
mountain_man
Posts: 40,292

Mar 5, 2012 -- 7:24AM, arielg wrote:

...The writers of the American constitution did not see  a problem with slavery, for instance.  Today there is a very different  consciousness about it.


Apparently you are very unfamiliar with US history. Many of the 55 framers of our constitution did have a problem with slavery. Several states threatened to withdraw from the union to be if slavery was to be regulated or if slaves were taxed or represented. The decision was postponed till later. When the issue was forced later, it caused a war in which 620,000 soldiers died.

Dave - Just a Man in the Mountains.

I am a Humanist. I believe in a rational philosophy of life, informed by science, inspired by art, and motivated by a desire to do good for its own sake and not by an expectation of a reward or fear of punishment in an afterlife.
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3 years ago  ::  Mar 05, 2012 - 10:38AM #44
Fodaoson
Posts: 11,162

Mar 5, 2012 -- 6:58AM, CharikIeia wrote:



Mar 5, 2012 -- 5:00AM, shmuelgoldstein wrote:



Mar 4, 2012 -- 2:34AM, CharikIeia wrote:

... It is very weird to see a people in the 21st century try living by a document forged in the 18th, basically.




Why?


Because this is not the 18th century.

The attempt typically comes with a good measure of denial of reality, with the assumption that recipes of the past will suffice in the present. But the present is different, the problems we face today are not the same problems people faced in earlier ages. The world we live in is not the same world that the old documents were made for.

Ultimately, you cannot escape present-day reality. Even if you try living by 18th century documents, what you inevitably will do is live by your present-day interpretation & projection of what the document meant to its writers. If you acknowledge that, you can just as well live without the document because your present-day understanding sufficiently captures your stance. If you don't acknowledge that, but assume you know exactly what the document means in time immemorial, as it were, you're dangerously delusional, in my view.




Mar 5, 2012 -- 7:24AM, arielg wrote:



Well said, Chari.  Fundamentally, the attempt to come up with fair guidelines is the same. The basic principles are always  the same.  But the application of those principles, the interpretations,  should change according to the times.

The writers of the American constitution did not see  a problem with slavery, for instance.  Today there is a very different  consciousness about it.




The constitution is not an “18th century” document. It is a living changing document.  It has been amended 27 times, 11 times in the 20thcentury.  Every session of the supreme court looks at a constitutional question  and interprets every case it addresses in light of the constitution; it follows that the constitution is, de facto constantly be interpreted into a  21st  century document.

The Slavery question was a  major issue of the Constitutional convention .  A leading proponent of abolition by the constitution  was Ben Franklin. Several northern states introduced articles to  end slavery but they were defeated by the southern states and by the southern states threat to not agree to a ban by not ratifying such a constitution and not joining the new union. The constitution in Article sec 2:

                 “Representatives and direct Taxes shall be apportioned among the several States

               which may be included within this Union, according to their respective Numbers,

               which shall be determined by adding to the whole Number of free Persons,

               including those bound to Service for a Term of Years, and excluding Indians not

               taxed, three fifths of all other Persons.

The three fifths is a reference to slave without using the word Slave or slavery but it does recognize the imported persons as persons ie people, humans

  Article 1 sec 9:  Section 9

               The Migration or Importation of such Persons as any of the States now existing

               shall think proper to admit, shall not be prohibited by the Congress prior to

               the Year one thousand eight hundred and eight, but a tax or duty may be imposed

               on such Importation, not exceeding ten dollars for each Person.

 Sec 9  keeps importation and movement of slaves for twenty years in the Original States

 But the Federal government could prohibit importation and migration of slaves to New states or Territories.

 Slavery was a big economic issue to the south. Slavery was a integral part of the Plantation system. The three fifths rule was based on economics of taxation and slaves did not fully participate  in the economic system as  individuals /persons so they were  limited to the three fifths  status.


Edit: post out of bounds (some copy and paste will cause this issue)

Moderated by Beliefnet_community on Mar 05, 2012 - 02:27PM
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3 years ago  ::  Mar 05, 2012 - 2:35PM #45
Erey
Posts: 19,171

I will agree that the constitution has dwindled in influence and further the US although far from weak or outdone has also dwindled in influence.


Perhaps I am just crazy-talkin here?  I can't help but wonder instead of all the mouth-foaming bs here about Gitmo and other issues if the reality of the situation is just not more simple. 


The US heavily influenced much of the rest of the world, now alot of countries have their own constitution, they also have their own global industry, etc.  As ancient Greece influenced the constitutional framers that direct influence was felt less as the US framework was developed.  You are typically only influenced directly until you create your own - then it becomes yours

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3 years ago  ::  Mar 05, 2012 - 3:18PM #46
mindis1
Posts: 8,047

Comparative international constitutionalism is an obscure subject matter. It is rare for the average reasonable law student to be exposed to it. And the authors of this paper (ssrn.stanford.edu/delivery.php?ID=838069...) seem particularly unconcerned with pumping the text with anything in flagrante delicto. I had to stop in the middle and take a nap. In fact, I’m still napping as I write this.


The authors show that they are able to generate lots of data points, but are less able to draw conclusions from these data. Is there something noteworthy about the fact that constitutions have evolved since the US Constitution was ratified? The paper’s thesis seems to be equivalent to pointing out that post-modern architecture is in some ways more similar to mid-century modern than to Georgian. So that’s why I dozed off. Actually I might have stayed awake during the paper on architecture, since it would have had pretty pictures.


The authors identify two differences between the US Constitution and more recent ones:


[1] that the US Constitution is especially difficult to amend. It is; it was intended that way. I can’t think a substantive gripe here. The authors do not identify any problem that has resulted from the amendment process. Some US states’ constitutions are somewhat easier to amend (besides the fact that it’s easier for a few million people to amend a constitution than it is to rally a few hundred million and a do-nothing Congress whose members are only concerned with padding their own bank accounts). I do not see that there is much to recommend a more easily amended US Constitution. Americans are uneducated and have attention spans the length of a TV commercial, so it isn’t a good idea to make it too easy to upheave things.


[2] that the US Constitution is “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights.” Antithetical? There are a lot of positive rights, not just prohibitions, found in the Bill of Rights. It is true that more recent constitutions list many positive rights that are not breathed in the US Constitution--for those here who have not read the paper (which I’m thinking is the majority), this difference in the number of articulated rights is the element in which, the authors tell us, the US Constitution’s “influence” on the construction of more recent constitutions is declining. One example that was surprising to me is that 80% of current constitutions on the world stage specify a “right to food”. There is something ironic about including a constitutional right to food in a country where most of its citizens are overweight. If anything, Americans need to be reminded of their God-given right to not go to the fast food drive-thru twice per day.


Of course, there is probably much to dispute about the authors’ method of enumerating rights in the various constitutions. They mention that unlike the vast majority of more recent constitutions, the US Constitution does not have a provision for “women’s rights,” which they specify as “including gender equality, woman empowerment in labor relations (e.g., equal pay for equal work), equality husband and wife within the family, special protection of women (e.g. special conditions at work), right to maternity leave, special protection of mothers)”. But there is the 19th Amendment providing for women’s suffrage, which the authors seem to overlook, and which is the sort of provision that is unnecessary in the context of more recent constitutions; there is also the 14th Amendment, whose equal protection provision certainly includes women. “Equal pay for equal work” sounds like a good general provision, at least superficially, but hopefully wouldn’t be limited to gender equality. But apparently this gender equality has not been achieved in the US (and perhaps not even in countries with such a constitutional right). There is no reason under the US Constitution that wage equality cannot be enacted by statute, save for the fact that it isn’t easy to determine when this right has been perfected.


The authors also note that the more recent tendency of enumerating lots of specific rights in constitutions also necessitates the inclusion of boilerplate provisions that limit the scope of rights, noting that a “typical example is section 1 of the Canadian Charter of Rights and Freedoms, which stipulates that the rights contained therein are subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’” This points up the problem of language and the law: when you can’t determine what concepts such as “reasonable limits,” “demonstrably justified,” and “free and democratic society” mean, then all the law can do is add more words, more concepts. These concepts tend to expand and take on a life of their own; what was once just an adjective becomes a Ding an sich. The law is a lot like amoebae dividing and multiplying. This tendency should be kept in check as much as possible, since the legal concepts become a mental chess game in the judges’ fantasies. In countries with a constitutional right to food, presumably this excludes a thousand different circumstances where a person does not enjoy such a right--obviously a person could become rich merely by asserting an unconditional right to food at the grocery store. No right is unconditional. Hence the need for the boilerplate provisions, which, in addition to the right provision, require judicial interpretation. So perhaps the libertarian reluctance to list specific rights and instead proscribe the activities of the government is not a bad way to go.


If the authors of this paper had been able to show that the US Constitution is dysfunctional in some way or contains an inadequate number of rights, then presumably they would have made an argument to this effect. This seems to be the elephant that is missing from the room in this paper.

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3 years ago  ::  Mar 05, 2012 - 3:20PM #47
mindis1
Posts: 8,047

Many people have mentioned political issues here--e.g., overcrowding of US prisons; Obama’s failure to close Gitmo--as though these are the result of some defect or deficiency in the Constitution. These problems are obviously not due to the lack of specifying some right in the Constitution. Right?

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3 years ago  ::  Mar 05, 2012 - 3:21PM #48
jane2
Posts: 14,295

Mar 5, 2012 -- 2:35PM, Erey wrote:


I will agree that the constitution has dwindled in influence and further the US although far from weak or outdone has also dwindled in influence.


Perhaps I am just crazy-talkin here?  I can't help but wonder instead of all the mouth-foaming bs here about Gitmo and other issues if the reality of the situation is just not more simple. 


The US heavily influenced much of the rest of the world, now alot of countries have their own constitution, they also have their own global industry, etc.  As ancient Greece influenced the constitutional framers that direct influence was felt less as the US framework was developed.  You are typically only influenced directly until you create your own - then it becomes yours




A tad simplistic for me.




 

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3 years ago  ::  Mar 05, 2012 - 4:23PM #49
solfeggio
Posts: 9,474

Mindis -


I liked your point about the law being comparable to amoebae dividing over and over again.  Well, actually, I enjoyed reading your whole post, because in that statement you have so nicely summarised what was being stated in the original document.


The law, whether constitutional or otherwise, has always been a living thing.  And, because laws are written by people, who are not infallible, they can even be designed to mislead or even deceive. As well, laws can go out of date or simply have to change as societies change. 


Thomas Jefferson wrote that every constitution expires at the end of 19 years, because 'the earth belongs to the living generation.'


And, as has been brought out by several people in this thread, 18th century documents do sometimes need updating.  For example, the Electoral College is certainly an archaic relic that should have been dumped long ago.  A national election based solely on the popular vote would be much more democratic.


Then, you have the set-up of the Senate, in which states with small populations have the same amount of votes as much more populous states.  Is that fair?


I think the authors of the document cited in the OP were simply asking the question: Is the US Constitution fit for 21st century reality?  Various polls have asked this same question, and the polls have shown that the average American is not exactly satisfied with present American political institutions.


www.seattlepi.com/local/opinion/article/...


On the other hand, a Constitution drafted today in America might bear little resemblance to the original.  Business interests and the power elite would give eminent domain sacred status, and the First Amendment might disappear entirely.  The country might well become a corporate-controlled state.


You are right, though, in saying that the study draws no concrete conclusions.  And it is possible that the main reason why many countries today are not using the US Constitution as a model for their own constitutions is simply the fact that public perception of the US as a world power has fallen over the years.  Sadly enough, preemptive wars, torture and indefinite detention, and ugly business practises have tarnished the American image.


 


 


 


 

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3 years ago  ::  Mar 05, 2012 - 4:58PM #50
jane2
Posts: 14,295

Mar 5, 2012 -- 4:23PM, solfeggio wrote:


Mindis -


I liked your point about the law being comparable to amoebae dividing over and over again.  Well, actually, I enjoyed reading your whole post, because in that statement you have so nicely summarised what was being stated in the original document.


The law, whether constitutional or otherwise, has always been a living thing.  And, because laws are written by people, who are not infallible, they can even be designed to mislead or even deceive. As well, laws can go out of date or simply have to change as societies change. 


Thomas Jefferson wrote that every constitution expires at the end of 19 years, because 'the earth belongs to the living generation.'


And, as has been brought out by several people in this thread, 18th century documents do sometimes need updating.  For example, the Electoral College is certainly an archaic relic that should have been dumped long ago.  A national election based solely on the popular vote would be much more democratic.


Then, you have the set-up of the Senate, in which states with small populations have the same amount of votes as much more populous states.  Is that fair?


I think the authors of the document cited in the OP were simply asking the question: Is the US Constitution fit for 21st century reality?  Various polls have asked this same question, and the polls have shown that the average American is not exactly satisfied with present American political institutions.


www.seattlepi.com/local/opinion/article/...


On the other hand, a Constitution drafted today in America might bear little resemblance to the original.  Business interests and the power elite would give eminent domain sacred status, and the First Amendment might disappear entirely.  The country might well become a corporate-controlled state.


You are right, though, in saying that the study draws no concrete conclusions.  And it is possible that the main reason why many countries today are not using the US Constitution as a model for their own constitutions is simply the fact that public perception of the US as a world power has fallen over the years.  Sadly enough, preemptive wars, torture and indefinite detention, and ugly business practises have tarnished the American image.


 


 


 


 




Solf


Why would a citizen of a small island nation on the other side of the world feel a need to denigrate things American?? You do this constantly. I have no ill-will for NZ : y'all don't want our nuclear-powered military ships so the US uses other ports. Something about the US seems to stick in your craw. Why??


As I pointed out my cerebral palsy handicapped grandson in all probability has had much finer care under our system than yours under your system. His parents have already mapped out how he will graduate from GA TECH with aide.


Do you post on a German board to tell them how marvelous Germany is? Germany is an enigma to me. Right now I am not in favor or their monetary policy for the EU; I'm a moderate Keynesian. I've driven German BMWs for 25 years, but I now boycott German products. Of course, I prefer Irish crystal to anything continental--Irish linen, too. My sterling silver service for 8 is American. My china is Mikasa bone china service for 12 bought at discount from Pacex when we lived in Asia.


You seem to have run into some silly Americans from some dreary cruise ship in NZ. When we vacationed in the Caribbean we always avoided cruise ship passengers. My sister and I spent a week in St. Martin--her inlaws were in port on their rented sailing yachts. (Her 8-y-o daughter had almost died from child-onset diabetes and she asked me to join her.)


Guess you just like to stir the pot. My crowd can spinoff zingers at lightening speed but those are closed conversations. We also believe in kindness.


 



 

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