A Philosophical Question

[Carinthium]

I'm asking this one because I'm curious to know what people here would think of it. The basic question is:

-When it is morally right for a government to act in a manner which, according to the constitution of said government, is unconstitutional?

Such an act is obviously inherently hypocritical, as the government's source of legitimacy is the constitution. The argument for it being unjust grows much stronger when you are punishing people under an unconstitutional law. But when do people think it would justified anyawy (if at all), and why?

[Spoonist]

I'd say that has a few loopholes in it. This kinda only makes sense if you mean from an american perspective, is that the case?

Most govs do not draw their legitimacy from any constitution, they draw it from power and by the inherent fact of being in control of the gov. (Yes that is intended as circular, that is the way its been for rulers since the dawn of civ).
For instance, North Korea, I wouldn't think a constitution has ever been mentioned in decades versus what the leadership decides.

In most non-anglosphere democracies, when you come to a situation where the constitution hinders the gov, you simply change it. While the process can be longish, just as long as the majority of parlament/reichstag/etc is on the train that is no biggie.
No hypocracy needed at all.

[Carinthium]

Oops. There are countries other than the United States where changing the constitution is very difficult (Australia for one), but yes that sort of country is assumed.

[Spoonist]

Austalia is very much anglosphere... Hence the "non-anglosphere democracies".

[Lord Damos]

In any case where a Constitution would dictate government policies, said government has the right to make "Amendments" to that document. As the saying goes, "It is not written in stone." I think most people for get including us Americans that the government should fear the people and not the other way around.

[Ziggy Stardust]

Honestly, the difference between an unjust constitution and any other unjust law, rule, or what have you is just semantics. There is no strong reason why something enshrined in a constitution has more legitimacy or permanency than any other law, and laws by nature are organic. They change over time. In American history, there are lots of very clear examples (Jim Crow/segregation, etc.).

[Alyrium Denryle]

Honestly, the difference between an unjust constitution and any other unjust law, rule, or what have you is just semantics. There is no strong reason why something enshrined in a constitution has more legitimacy or permanency than any other law, and laws by nature are organic. They change over time. In American history, there are lots of very clear examples (Jim Crow/segregation, etc.).

This is, of course, not to say that certain parts of a constitution are not moral goods. The Due Process Clause,, Habeus Corpus etc are sort of important with regard to avoiding the complete elimination of all other social, political, and economic rights and liberties. Without a guarantee of due process, there is nothing stopping extrajudicial killing, arbitrary imprisonment, arbitrary asset confiscation etc. No other right, liberty, guarantee, law or regulation is worth the paper it is written on when the government is permitted to imprison anyone it likes without cause.

So, under no condition (other than a shooting war and then the only exception is WRT combatants as defined by the Geneva Conventions) is it acceptable for the government to violate due process. However, something like the Interstate Commerce Clause is another matter entirely.

[Darth Wong]

I'm asking this one because I'm curious to know what people here would think of it. The basic question is:

-When it is morally right for a government to act in a manner which, according to the constitution of said government, is unconstitutional?

Such an act is obviously inherently hypocritical, as the government's source of legitimacy is the constitution. The argument for it being unjust grows much stronger when you are punishing people under an unconstitutional law. But when do people think it would justified anyawy (if at all), and why?

I think the root problem here is your assumption that government derives moral "legitimacy" from the constitution. Or more precisely, the fact that you clearly don't realize that this is in fact a mere assumption.

[Spoonist]

I'm with Ziggy here. constitutions are just fancy laws. Look at Israel, they don't even have one.

Oops. There are countries other than the United States where changing the constitution is very difficult (Australia for one), but yes that sort of country is assumed.

So lets look at Australia then,
http://www.peo.gov.au/students/cl/constitution.html
by theirs if they want to change then they need an absolute majority in both houses of the federal parliament and the approval in a referendum of the proposed amendment by a majority of electors nationwide, and a majority in a majority of states.
So lets go to back when the constitution hindered reform of voting rights for aboriginals for the commonwealth elections. So the more progressive states of australia couldn't do what the less progressive states wanted to do.
So the majority of australians was for equal voting rights, but they didn't have them in queensland for instance.
So what you would have is local councils making the "illegal" choice of registering and letting aboriginals vote under the guise that they didn't know they were aboriginals.
Tada, a progressive moral action against the constitution which the local gov reps did.
This was also aided by the big fed gov since they were pro while some state gov was against.
Then some years later it passed the houses, and was put to a referendum which passed with flying colors (pun intended).

See? This isn't about hypocracy or anything silly like that. Its about normal fluency of democracies changing with the time.

If at a later time everything swings back,then the constitution will be first broken, then willfully broken, then changed, to remove such rights.

I think most people for get including us Americans that the government should fear the people and not the other way around.

This is a very strange notion.
Why would fear be beneficial to anyone? In my book neither should fear the other, respect is so much better.
Me I'd rather build a system where the gov individuals would only fear the audits of any transgressions vs rules/laws. So the key being building a good audit office with enough power and respect. Sorta like Norway has it.
http://www.riksrevisjonen.no/en/Pages/Homepage.aspx
Its a Quis custodiet ipsos custodes? thingie...

Without a guarantee of due process, there is nothing stopping extrajudicial killing, arbitrary imprisonment, arbitrary asset confiscation etc. No other right, liberty, guarantee, law or regulation is worth the paper it is written on when the government is permitted to imprison anyone it likes without cause.

As residenent devil's advocate of this thread I just have to make the obvious challenge of gitmo here, which while it violates Habeus Corpus has not let the US plunge down into a complete dictatorship.

[Alyrium Denryle]

As residenent devil's advocate of this thread I just have to make the obvious challenge of gitmo here, which while it violates Habeus Corpus has not let the US plunge down into a complete dictatorship.

See my addendum regarding the Geneva Conventions. Also note that the supreme court struck down a lot of the bullshit. Only to have new bullshit crop up faster than the courts can deal with it.

Also note: there is more to the erosion of US due process than the existence of Gitmo. The NDAA for example.

[Lord Damos]

Why would fear be beneficial to anyone? In my book neither should fear the other, respect is so much better.
Me I'd rather build a system where the gov individuals would only fear the audits of any transgressions vs rules/laws. So the key being building a good audit office with enough power and respect. Sorta like Norway has it.

Respect does make more sense than fear but many Americans do not understand, or know how much, or little power the government should actually have.

[Spoonist]

Also note: there is more to the erosion of US due process than the existence of Gitmo. The NDAA for example.

Agreed, the point being that a country could behave morally in one instance and imorally the next irregardless of constitution and still function normally and still be consistant in its actions as long as most don't disagree.

...but many Americans do not understand, or know how much, or little power the government should actually have.

I don't really know what you are arguing here. I'd say the above is true globally.
But that is not really of significance since its all relative anyway, perceived power is more important to people than actual power.
From perceived power people then form opinions on whether they think the gov should have more or less of it. Add cognative dissonance to the mix and the answer could be both, for instance a us vs them over there.
This regardless whether the gov of X has de facto more power over its people than the gov of Y.

[Carinthium]

Legally, all government entitites deprive their right to exist and make laws either from a legal entity enshrined by the Constitution or from the Constitution itself. Their legal right to make laws comes from the Constitution. Therefore, a government entity which breaches the Constitution is saying, very simply, "I have the right to make laws because the Constitution- you, the people, must obey. I am going to break the Constitution- you, the people, must obey me anyway."

Although I am not going to try and defend the claim that hypocrisy is morally wrong, the claim that hypocrisy is self-contradictory is in fact tautological. If you are a hypocrite, ergo you are not following a self-consistent moral system. If the government breaks its own Constitution, it isn't.

Honestly, the difference between an unjust constitution and any other unjust law, rule, or what have you is just semantics. There is no strong reason why something enshrined in a constitution has more legitimacy or permanency than any other law, and laws by nature are organic. They change over time. In American history, there are lots of very clear examples (Jim Crow/segregation, etc.).

If you're an ordinary citizen, you have a point here. Refer to my above argument for why it's different if you're the government.

So lets look at Australia then,
http://www.peo.gov.au/students/cl/constitution.html
by theirs if they want to change then they need an absolute majority in both houses of the federal parliament and the approval in a referendum of the proposed amendment by a majority of electors nationwide, and a majority in a majority of states.
So lets go to back when the constitution hindered reform of voting rights for aboriginals for the commonwealth elections. So the more progressive states of australia couldn't do what the less progressive states wanted to do.
So the majority of australians was for equal voting rights, but they didn't have them in queensland for instance.
So what you would have is local councils making the "illegal" choice of registering and letting aboriginals vote under the guise that they didn't know they were aboriginals.
Tada, a progressive moral action against the constitution which the local gov reps did.
This was also aided by the big fed gov since they were pro while some state gov was against.
Then some years later it passed the houses, and was put to a referendum which passed with flying colors (pun intended).

See? This isn't about hypocracy or anything silly like that. Its about normal fluency of democracies changing with the time.

If at a later time everything swings back,then the constitution will be first broken, then willfully broken, then changed, to remove such rights.

The local governments derived their legitimacy and their right to be obeyed from (I believe) the States, and indirectly (I'm sure) from the Constitution. They are now willingly breaking said Constitution.

You are assuming that various things (the will of the majority, equal voting rights etc) are inherent goods. How can you justify this?

Agreed, the point being that a country could behave morally in one instance and imorally the next irregardless of constitution and still function normally and still be consistant in its actions as long as most don't disagree.

I've already made my argument on a rational basis, so I'm going to pose a hypothetical to you to try and get some clarification.

-You are a judge in a Constitutional country. To have gotten this far, you will have sworn to uphold the law. A case comes before you in which you are trying a "war criminal"- a mass-murderer guilty for the deaths of, let's say 10,000 people. Said "war criminal" makes an appeal that the law is unconstitutional- in your legal judgement, he is right and under the law he is completely innocent thanks to his exercise of legal powers. (Let's assume for the sake of argument this is right despite international law- say the government hasn't entered into such treaties, or that they entered into them in an unconstintutional way)

-You convict said so-called war criminal. A very unusual group of journalists go up to you and accuse you of undermining the rule of law, breaching your oath of office, and punishing an innocent man. How do you respond?

This scenario may seem absurd, but it is going to extremes to prove a point (also, the only unrealistic thing is the unliklihood of a country that is Constitutional and which has people who want to commit genocide- given suspension of disbelief on that point alone, the country could be Federal and the mass-murderer in charge of one of the States.).

In this scenario, you are clearly a hypocrite- you swear an oath to uphold the law (even though you're unaware it will lead to this situation), you deprive your legal rights from a Constitution you are breaking, and you are part of a system that in theory has rule of law but which in practice you are undermining.

[Alyrium Denryle]

Agreed, the point being that a country could behave morally in one instance and imorally the next irregardless of constitution and still function normally and still be consistant in its actions as long as most don't disagree.

You are thinking in terms that are too narrow, I think. It may be preferable to act outside the bounds of the constitution in one particular instance, but there is a problem.

The problem is when you have a common law system that works on the basis of legal precedent. The constitution sets up a legitimate framework for your laws. That framework is interpreted by a judiciary, and how the government relates to its citizenry and what the scope of permissible actions by the government happen to be is determined on the basis of how the courts have ruled on matters in the past.

Gitmo is problematic for a lot of reasons. If we had an actual war going on with Iraq and Afghanistan, Gitmo itself as a military prison for POWs would not be an issue. They do not get repatriated until the end of hostilities barring accusations of war crimes (and no, just shooting at our soldiers does not constitute a war crime). If there is a question about whether or not someone is a legal combatant, those are handled by a regularly constituted military court--the same ones we use for our own soldiers. This system works. We have been doing it for a while. It is also not what we are doing.

We are holding them indefinitely without charging them with a war crime--but rather civil crimes like murder. Their status as legal or illegal combatants is not being determined by a regularly constituted independent court--but an irregularly constituted one with custom-built (read: kangaroo court) rules of evidence that does not even have the power to mandate the release of a prisoner found not guilty. As evidenced by the guy who died in custody two years after he was found not guilty.

This creates a dangerous precedent in our legal system. Even without the NDAA, the fact that these people were not taken from US soil is irrelevant (and some of the victims of our government were). Our right to due process is now dependent entirely on the benevolence of the person sitting in the Oval Office. This is because the civil crimes people are being accused of are not special legal snowflakes, nor does our legal system recognize a dichotomy between americans and foreign nationals. If we claim jurisdiction over a person living in the desert, capture that person, and then hold them, whatever legal framework that gets used for that person can be applied to any person over which the government claims jurisdiction.

[Darth Wong]

Legally, all government entitites deprive their right to exist and make laws either from a legal entity enshrined by the Constitution or from the Constitution itself.

And everyone should subscribe to moral legalism because ...?

Really, the idea that a constitution is a source of government legitimacy because it says so is such a ridiculously obvious case of circular reasoning that I just have to laugh.

[Carinthium]

As a matter of what is legally true it is clear that a government's legitimacy comes from the Constitution. Therefore, it is implicit in the government's actions that because of the Constitution they have the right to make the laws they do. If you invoke the Practicality Assumption (which I don't, but I'm given to understand you do), the argument gets stronger as governments which break their own Constitutions consistently try to pretend they still keep them.

I'll give you the same hypothetical I gave Spoonist at the bottom of my post before this one. If you were a judge punishing somebody for breaking an unconstitutional law, or for that matter if you were a ruler trying to enforce a law outside your constitutional powers, how on earth could you justify it to the people? Being a utilitarian or similiar would both undermine the rule of law and lead to vigilantism (again, you're the one who put the Practicality Assumption into this on the other thread).

[Darth Wong]

As a matter of what is legally true it is clear that a government's legitimacy comes from the Constitution. Therefore, it is implicit in the government's actions that because of the Constitution they have the right to make the laws they do.

For the second time, that is circular logic. You are saying that a country's laws are justified by its constitution, and that its constitution is justified by its laws.

If you invoke the Practicality Assumption (which I don't, but I'm given to understand you do), the argument gets stronger as governments which break their own Constitutions consistently try to pretend they still keep them.

Please, by all means, state the tenets of this "Practicality Assumption" that you think I am invoking.

I'll give you the same hypothetical I gave Spoonist at the bottom of my post before this one. If you were a judge punishing somebody for breaking an unconstitutional law, or for that matter if you were a ruler trying to enforce a law outside your constitutional powers, how on earth could you justify it to the people?

By appealing to the same justification a ruler would use in lieu of a constitution: it benefits people or is necessary. How do you think all constitutional countries justify martial law in times of war?

Being a utilitarian or similiar would both undermine the rule of law and lead to vigilantism (again, you're the one who put the Practicality Assumption into this on the other thread).

Nice prediction. Now justify it without resorting to cherry-picked historical examples.

[Carinthium]

EDIT: Come to think of it Darth Wong, are you a utilitarian or something else? What name do you think best fits the moral philosophy you follow?

For the second time, that is circular logic. You are saying that a country's laws are justified by its constitution, and that its constitution is justified by its laws.

You don't understand what it means for something to be legally true, do you?

There are large numbers of things that are assumed for purposes of law to be legally true- i.e. whether they are true or not judges will treat them as true. These include assumptions such as free will, common law ("this was really part of the law all along"), that a person is definitely an adult at 18 (as opposed to somewhat before or after for some people), legal adoption creating relations to the child in law but not in fact (the idea that there is a form of 'true' relation came later), and various others (most of which are only assumed in the absence of evidence to the contrary, to be fair).

Please, by all means, state the tenets of this "Practicality Assumption" that you think I am invoking.

See my most recent post on the other thread.

By appealing to the same justification a ruler would use in lieu of a constitution: it benefits people or is necessary. How do you think all constitutional countries justify martial law in times of war?

What countries have ever justified martial law under circumstances without an appeal to their Constitutions's emergency clauses or something similiar?

In the hypothetical you are a judge, I will point out that you would have SWORN to uphold the law, thus promising you would interpret the Constitution correctly. If for this reason you say you would never be a judge even if you were qualified that's fair enough, but

In the hypothetical you are a ruler, then you have been given a set of very broad powers by the Constitution, but clearly limited (or we wouldn't be having this discussion)- you are not an absolute monarch but an officer of the state (in a broad sense). Even if you haven't sworn to uphold the Constitution, you are effectively the equivilant of an armed thug getting a gang together and forcing people to do whatever your law mandates and are just as much of a threat to the rule of law. The only difference is that you can get away with it.

Nice prediction. Now justify it without resorting to cherry-picked historical examples.

Whatever examples I use, you'd accuse me of cherry-picking. What I'm talking about here has never happened in history anyway because it's very unlikely a ruler would actually admit he was breaking the Constitution. If he did, opponents of the law would almost certainly sue for it to be struck down and suceed unless the ruler were to make a rather silly U-Turn. If the ruler tried to enforce it anyway, either he would suceed (destroying the myth of the rule of law and undermining public confidence), or he would fail (a severe prestige blow, and what would the point of the law have been in the first place?).

The only exception is absolutely nobody wanted the Constitution to be enforced as it actually was enough to sue about it- very unlikely- or the ruler used a legal mechanism (like forbidding suing on the matter until it was too late) which is not always possible.

In addition, a vigilante can appeal just as easily as the hypothetical ruler mentioned earlier to necessity or benefiting people when defying the government as the government can appeal to it.

[Carinthium]

To clarify, I meant that you are legally an officer of the state betraying that and putting oneself in a posistion where one has just about as much legal or moral right as an armed thug forcing people to act the way you're forcing people to and defying the government to do so.

[Edi]

Before you can even pose the question in the OP without running smack into the circular reasoning of the constitution being a justification for government legitimacy just because, you need to explore multiple facets of legal theory and the first principles related to how constitutions and governments are formed and formulated.

The main foundation block, at least when talking about western democracies, is that the government is there to serve the people and to organize things for them. There are other issues related to how and why government or state is formed and by whom (including but not limited to factors of geography, language, ethnicity and other issues). With democratic governments, constitutions are usually formulated by an assembly of representatives instead of the entire population and the method of selecting these assemblies need not be identical to election or other selection processes possibly set forth in the constitution and to be followed thereafter.

Then there are the things that go into the constitution, what do you define in there and what do you leave out? Does the constitution contain references such as "The detailed regulation of X shall be done through laws passed by the legislature" or must all of the things to be mentioned be spelled out in detail?

The point here being that you must first establish that the constitution is a valid source of (moral as well as legal) authority instead of just declaring it by fiat, like your OP does.

[Carinthium]

I am NOT saying that it is an objective moral principle that governments are justified because of their Constitutions. I am saying that it is an implicit legal principle that the powers of government bodies listed in the Constitution come from the Constitution. To put my earlier argument in a simpler form:

For a law-enforcer to break the law is hypocritical. The government enforces the law. If the government is a law-breaker, they are therefore hypocritical.

If you consider hypocrisy a moral wrong (and more than a few of you have accused people of being hypocrites with that implication before), then by extenstion constitution-breaking is a moral wrong. As almost all the people who made constitutions would disagree with your 'higher purpose' argument if asked, it cannot go over the head of what the Constitution actually says.

Finally, it is usually clear in a Constitution where all powers not explicitly laid out go- to the states in Australia and the US, for example. If a power isn't listed as belonging to any entity, one can infer that a legal power of such a nature does not exist.

[Edi]

I am NOT saying that it is an objective moral principle that governments are justified because of their Constitutions. I am saying that it is an implicit legal principle that the powers of government bodies listed in the Constitution come from the Constitution.

This is an objectively false statement. Please get acquainted with basic legal theory 101. The first principles in play are significantly more basic than that claim and it takes several steps to get from them to your statement.

Finally, it is usually clear in a Constitution where all powers not explicitly laid out go- to the states in Australia and the US, for example. If a power isn't listed as belonging to any entity, one can infer that a legal power of such a nature does not exist.

If you wish to discuss specific constitutions or argue situations where there are similarities to them, then say so instead of generalizing from that starting premise. And if a legal power is not specifically defined or listed as belonging to someone, then the only fact of the matter is that the constitution is silent on that score and such a power may be brought into being by legislation of a lesser stature. Only if such powers then conflict with powers, rights or obligations already laid out in the constitution are they unconstitutional.

You really need to get a far better grounding in the theory of the issues you post about before making sweeping proclamations. Anyone with even cursory familiarity with the subject is going to chew you up and spit you out in a debate.

[Zaune]

Respect does make more sense than fear but many Americans do not understand, or know how much, or little power the government should actually have.

Or maybe there's more than one point of view on how much it should have depending on what kind of society you want to live in.

Also, what exactly should the government fear the people doing?

[Spoonist]

@AD
I don't think I'm thinking too narrowly but rather too pragmatically.
I don't think that Gitmo created such a precedent that you'd have to be afraid of the "benevolence of the person sitting in the Oval Office" simply because its an us vs them situation. I had hoped that Gitmo would have created a much much larger outrage both domestically in the US and in the international community, but it did not. Because it was happening to "them over there that is not like us". (Missing the lessons from WWII).
People simply didn't care enough and still don't.

So while the precedent was set what the US and other nations could do vs its perceived terrorists/enemies and created the situation where the war on terror has allowed for worse stuff than was allowed in the cold war. But I'd argue against it setting a similar precedent vs someone who would be perceived as an "us". For instance, if the oval office would use a similar modus operandi vs a US militia type situation similar to Waco then I don't think the precedent would be worth that much.

To make a grander example of what I meant with my " the point being that a country could behave morally in one instance and imorally the next irregardless of constitution and still function normally and still be consistant in its actions as long as most don't disagree" line.
Lets look at slavery. Most of europe had made slavery illegal in the 13th-16th century. As in the laws had specifically banned it and made the trade punishable. But with the surge in colonialism there suddenly became a de facto thing that the local pop was used as slaves. So when we hit the 17th-19th cen all of those countries who had outlawed slavery was very much allowing and encouraging slavery. What happened was that there was an "us" vs "them" in that the church ruled that those people over there was not equal to us and thus wasn't included in the no slavery deal. The very concept of "white slavery" was still illegal and would have been very much persecuted etc, but "black slavery" didn't have enough people who cared.

This is the plasticity of society, culture and thus also the interpretation of things like constitutions and laws.

Take the reverse example of Nixon. People in general really did care then. Lots of people felt a personal betrayal that the president would act like that. Nowadays similar behavior doesn't even register. Instead its more like people expect the president to do such things.

If there had been a complete outrage due to Gitmo, Abu Ghraib, and all the rest of the shit instead of indifference, then the laws and constitutions could and would have been used to put those responsible behind bars for a long time. But due to most people not caring enough and given enough people who agreed and encouraged this, it was impossible to persue that. Sometimes I'd like to chalk it down to the shock of 911 but that is just an easy excuse. The trend was there long before.
So the constitution and laws remain in effect and on paper, but for the current definition of "them" its ignored. Just like with Bradley Manning, not enough people care for due process or the laws on paper over what many consider a betrayal.

We could all hope and wish that laws and regulations was more solid but they really are not. They are never stronger than the checks and balancies allow. Sometimes that is a good thing and sometimes that is a bad thing.

[Spoonist]

For a law-enforcer to break the law is hypocritical. The government enforces the law. If the government is a law-breaker, they are therefore hypocritical.

If you consider hypocrisy a moral wrong (and more than a few of you have accused people of being hypocrites with that implication before), then by extenstion constitution-breaking is a moral wrong.

This strikes me as very naive. It tries to digitize the grayscale of the human condition into a black and white system. Such attempts always fails when shown the real world.

For instance, everyone and every entity reliant on humans is hypocritical at some point. The only difference being how often, how much and how selfaware we are of it. Just look at partner selection and you should easily be able to come up with multitudes of examples.
So if you don't allow any plasticity in calling someone a hypocrite then all human governements ever and future are hypocrites. Its in their nature.

Then look at what you try to infer next, that someone would then consider constitution-breaking as subjectively moral wrong. Nope, just nope. It depends on the moral code of the person and the context. For instance in the US, lots of religious persons even the hardline constitution defenders consider it morally right to break the constitution when it comes to their religion of choice. They simply don't see the contradiction.

Then for fun take the trope of the law-enforcer when faced with a failed verdict taking the law into their own hands when necessary. It resonates deep with millions of people for a the simple reason that legality does not necessarily follow ones morality.