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Switch to Forum Live View Global influence of US Constitution declining
2 years ago  ::  Mar 06, 2012 - 2:58AM #51
CharikIeia
Posts: 8,301

Mar 5, 2012 -- 3:20PM, mindis1 wrote:


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?



May I remind you of the main aspect of this thread, which you seem to have lost sight of while delving into the article? It is that other nations have over time found less and less reasons to model their own constitutions after the US'.


It is quite natural to take a look at the society at large that is living by a candidate model constitution. And when seeing these social facts (which you call 'political issues' for some reason I don't understand), count that as a negative in their decision making.


Right?

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2 years ago  ::  Mar 06, 2012 - 3:05AM #52
CharikIeia
Posts: 8,301

Mar 5, 2012 -- 10:38AM, Fodaoson wrote:


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.



It is sometimes better to start from scratch and build anew than to try to repair and improve something you inherited from your ancestors. I don't say this is the case for the US constitution, as I am obviously unqualified.


But the legal system has a tendency to create a life of its own, laws being amended and the amendments being nuanced and the nuances being ramified, and the contraditctions that arise from different laws' ramifications under special circumstances requiring additional legislation - in the end you need specialists where an efficient system would not require a specialist. This is a worldwide phenomenon - certainly playing a very strong role in Europe with its bureaucratic and huge civil servant apparatuses.


In the US, even justice Scalia is on record for criticising the US legal system as setting the wrong incentives to young people deciding for careers. Laws should be just sufficiently many, transparent and simple, not lead a life of their own as you say, fodaoson.

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2 years ago  ::  Mar 06, 2012 - 3:15AM #53
CharikIeia
Posts: 8,301

Mar 5, 2012 -- 4:58PM, jane2 wrote:


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.



It's off-topic, but... funny that you're not in favour of the most successful monetary policy in Europe... Why would you boycott German products? I could understand if you said, "in the current situation, I want to support weaker nations than Germany," but why frame it as an offense to Germany? Because Paul Krugman posts his anti-German diatribes in the NYT?

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2 years ago  ::  Mar 06, 2012 - 3:57AM #54
shmuelgoldstein
Posts: 2,330

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 ...... 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. 



Some things do change, but many things do not. Just because this is not the 18th century does not mean that we should reject what was written then. If we would, then we would reject a great deal of good work, from science to philosophy to law to medicine. Of course we should review things from time to time and update things, and if something should be thrown out, then throw it out (like limiting the vote to land-owning white males, or the medical practice of bleeding and ignoring sepsis and hygeine).  But just because something is 300 years old doesn't mean it's not good anymore (Harvey's studies on circulation, the Pythagoream theorem, Newtonian physics, the Bill of Rights, and more).


To take an example from our subject, the US Constitution sets up two legislative houses. Would the structure of the U.S government into two houses today be "out-dated"? Personally, I think it's a good thing. It gives each state as an entity a voice, yet it also gives the people as individuals a voice as well. It may not be appropriate for other countries, though. Is Freedom of the Press out-dated? Is Freedom of Religion out-dated? We can go on and on about each specific item in the US Const to show that it is, or can be, relevant today.


*Especially* the part about how to make an amendment.

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2 years ago  ::  Mar 06, 2012 - 10:23AM #55
mountain_man
Posts: 39,145

Mar 6, 2012 -- 3:57AM, shmuelgoldstein wrote:

Some things do change, but many things do not. Just because this is not the 18th century does not mean that we should reject what was written then. ...


Nor does it mean we, or anyone else, is tied to it. The US constitution is not perfect, things have changed, lessons learned, and society has progressed. What is happening, if the findings of the article are in any way true, is that some have learned those lessons and are not repeating the mistakes in our constitution.

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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2 years ago  ::  Mar 06, 2012 - 11:54AM #56
jane2
Posts: 14,295

Mar 6, 2012 -- 3:15AM, CharikIeia wrote:


Mar 5, 2012 -- 4:58PM, jane2 wrote:


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.



It's off-topic, but... funny that you're not in favour of the most successful monetary policy in Europe... Why would you boycott German products? I could understand if you said, "in the current situation, I want to support weaker nations than Germany," but why frame it as an offense to Germany? Because Paul Krugman posts his anti-German diatribes in the NYT?




You caught me out, Chari. I read most of Krugman's columns.




 

discuss catholicism
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2 years ago  ::  Mar 06, 2012 - 1:02PM #57
Roodog
Posts: 10,168

Mar 4, 2012 -- 9:54PM, Fodaoson wrote:


Obama issued an executive order to close Guantanamo. Congress has three times used the Defense appropriation bill( including the current one) to  forbid the closing. Executive orders do not override congressional action.


 Military prisoners on foreign soil do not have constitutional rights because they are outside  of a US  State, territory or possession . That was a reason for holding them at Guantanamo, it is not US soil and the Cuban Government is not a diplomatically recognized government..




I think that Guantanamo should be abandoned by the US and given back to Cuba.


That would be a goodwill gesture on our part.

For those who have faith, no explanation is neccessary.
For those who have no faith, no explanation is possible.

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If one turns his ear from hearing the Law, even his prayer is an abomination. Proverbs 28:9
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2 years ago  ::  Mar 06, 2012 - 4:59PM #58
mindis1
Posts: 7,631

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.



Solfeggio, I intended to mention that your mention of the electoral college is an excellent example of a needed amendment to the Constitution. It is true that Americans should be unafraid to amend this provision. Everyone is going to be pissed the next time the popular vote doesn’t win the electoral college. (Of course, these days the Supreme Court just appoints the President that it wants.)


Nevertheless, it seems to me somewhat irresponsible to recommend a major or complete overhaul of the Constitution at the moment--or it would be irresponsible if there were a snowball’s chance in hell of it happening. The most recent Constitutional amendment seriously floated was one to deprive same-sex couples of the right to marry and any legal “incidents of marriage”. Fortunately most Americans did not support such an amendment, and even fewer do now. But more than one candidate in the Republican primaries voiced support for such an amendment. More than half of the states amended their constitutions in just this way.


The authors, Law and Versteeg, note that the right found in the US Constitution and found least often in more recent constitutions is “the right to bear arms”. In the first place, the authors should be ashamed for even making such a statement, since the Second Amendment right is a militia right. In any case, if re-writing the Constitution at the moment, it’s quite likely the majority of Americans would try to expand the personal use right to guns. Americans do not even currently grasp the fact that the US is immersed in a blood bath. Most Americans seem to view mass slaughters such as the Tuscon massacre, which happen on a regular basis, as just unfortunate acts of God. As demonstrated on this board, statistics showing that the firearm homicide rate of US children under 15 years old is 16 times higher than all other industrialized countries combined (www.cdc.gov/MMWR/preview/mmwrhtml/000461...) do not even provoke comment by the majority of Americans--certainly such slaughter does not disturb Americans enough to consider restricting personal-use guns in some way. Americans are both too uneducated and too mean at the moment to contemplate overhauling the Constitution.


In fact, it’s quite likely that Obama is going to be re-elected, and both Scalia and Thomas are past their expiration dates. Thus there is a very real possibility of the 5-4 Heller decision being overturned. Let’s not screw up that possibility by re-writing the Constitution right now.


The authors list the following provisions found in a “generic bill of rights” and that are absent from the US Constitution:


Freedom of movement


Right not to be expelled from home territory


Presumption of innocence


Freedom of association


Judicial review


Right to work


Right to unionize and/or strike


Physical needs rights


Right to education


Women’s rights


Limits on property rights


In the first place, as already noted, at least a couple of these differences are merely the product of how the author’s counted rights: there is no specific “equal pay for equal work” right for women, but there is the more important and more inclusive Equal Protection clause of the 14th Amendment, and also state anti-discrimination laws. There is no “freedom of association” in the US Constitution? I think most Constitutional scholars would disagree with that claim. Courts have certainly found such a liberty in the First Amendment.


Many of the other provisions listed are just unnecessary in the US: There is a presumption of innocence at common law. There isn’t a problem of citizens’ “freedom of movement” within or outside of the country being restricted. There isn’t a problem of citizens being expelled from the country. The “right to unionize and/or strike” might be worth considering, but would require specific exceptions. The “right to education” could easily be understood by a court as forbidding home schooling of children, where some of the best education often occurs. Every state has a law requiring education of children.

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2 years ago  ::  Mar 06, 2012 - 5:02PM #59
mindis1
Posts: 7,631

Mar 6, 2012 -- 2:58AM, CharikIeia wrote:


Mar 5, 2012 -- 3:20PM, mindis1 wrote:


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?



May I remind you of the main aspect of this thread, which you seem to have lost sight of while delving into the article? It is that other nations have over time found less and less reasons to model their own constitutions after the US'.



Actually, the authors of the article did not attempt to identify any reasons for the differences in the number of specified rights between the US Constitution and other current constitutions. The authors mention nothing about other countries noticing some dysfunction or deficiency in specified rights in the US Constitution, and these countries trying to correct such a defect. There is no reason to suspect that that is the reason for the differences in number of specified rights.


It is quite natural to take a look at the society at large that is living by a candidate model constitution. And when seeing these social facts (which you call 'political issues' for some reason I don't understand), count that as a negative in their decision making.


Right?



If you are able to identify any political or social problem in the US as being the result of a deficiency in the number of rights specified in the Constitution, or as being the result of the absence of some particular right in the Constitution, then please do so. That’s basically the question I already asked.  


I don’t think it is “natural” to consider that overcrowding of prisons in the US or Obama’s failure to close Gitmo are problems caused by too few rights listed in the US Constitution.

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2 years ago  ::  Mar 06, 2012 - 6:01PM #60
Fodaoson
Posts: 11,149

Mar 6, 2012 -- 3:05AM, CharikIeia wrote:


Mar 5, 2012 -- 10:38AM, Fodaoson wrote:


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.



It is sometimes better to start from scratch and build anew than to try to repair and improve something you inherited from your ancestors. I don't say this is the case for the US constitution, as I am obviously unqualified.


But the legal system has a tendency to create a life of its own, laws being amended and the amendments being nuanced and the nuances being ramified, and the contraditctions that arise from different laws' ramifications under special circumstances requiring additional legislation - in the end you need specialists where an efficient system would not require a specialist. This is a worldwide phenomenon - certainly playing a very strong role in Europe with its bureaucratic and huge civil servant apparatuses.


In the US, even justice Scalia is on record for criticising the US legal system as setting the wrong incentives to young people deciding for careers. Laws should be just sufficiently many, transparent and simple, not lead a life of their own as you say, fodaoson.





IN most cases it better not to start over .The first wheel was probably a log, then someone cut it into parts making several wheels, The use a bigger log , added an axle,  and bigger log,  ond  so on.  Using the principle  of the  vacuum tube , the transistor was created, and then the  microchip.    Windows 8 has evolved from windows,  apples from Macintosh.  All American law is based on the constitution, Start over and two hundred years of precedence, of refining is gone.  The constitution is still working fine, in spite of the constant disagreement of some old worn out complaints of  BN USN&P posters opinion. We have had 43changes of government without a military  takeover, or a rebellion. Lincoln was elected before the civil war and his VP took over an ended the civil war. It was the rebels THINKING that brought on the civil war not  Lincoln.  It was the rebellion that gave Lincoln the opportunity and forced him to issue the Executive order called the Emancipation proclamation.


The election system  worked in 2000 with controversial election where the losing candidate received more popular votes but h electoral  college system of the constitution system elects the President.   


The constitution is still working for the United States,  

“I seldom make the mistake of arguing with people for whose opinions I have no respect.” Edward Gibbon
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