SCOTUS may base more decisions on int'l law

[Perinquus]

I never said or even hinted that I thought the constitution was infallible. What I did say is that the rule of law is the best available means to achieve a better, more prosperous, freer society. Perfect no, but the best that is humanly possible, yes, at least so far.

Yep, and this is about looking at other laws to see how to deal in a legal way with situations of law.

But always within the framework of the Constitution, which is the highest law of the land. That's the point that you seem determined to miss. If it's unconstitutional, it's not within the rule of law. If you set aside the rule of law in a particular instance because it appears expedient, or even "good" to do so, it makes it easier to do it again, and again later, and for less and less laudable aims.

[Darth Wong]

But always within the framework of the Constitution, which is the highest law of the land. That's the point that you seem determined to miss. If it's unconstitutional, it's not within the rule of law. If you set aside the rule of law in a particular instance because it appears expedient, or even "good" to do so, it makes it easier to do it again, and again later, and for less and less laudable aims.

I thought that the Supreme Court is generally asked to rule on something because the Constitution is ambiguous about it. If it is ambiguous, then we must ask where they will seek guidance from, and whether it's international law or personal demons or the crack of the plumber's ass, I don't see what difference it makes. An enormous volume of law is precedent and interpretation based on individual preferences. The constitution provides a framework which can be stretched and twisted and pulled depending on what some particular panel of judges happens to think today; the rule of Law is a nice-sounding way of saying "the rule of Semantics and appeals to authority".

[Perinquus]

It hasn't destroyed the country yet, and it probably won't destroy it now.

By itself it won't no. But our rights and freedoms are far more circumscribed today than they were in the years just after the constitution was ratified. It's exactly like the old saw about dropping a frog in boiling water versus putting in cold water and bringing it to the boil. No one would stand for a huge, blatant violation, but they'll let a lot of little ones slip by over time.

Just give me a second to look up "circumscribed"...limited, okay. I could argue about whether or not our current rights actually are more curtailed-I think it's true with some rights but not with others-but I won't, because this issue has nothing whatsoever to do with violating an individual's rights, so your entire post a is a giant red herring. Hell, if anything, looking to more liberal European laws will actually increase individual rights.

No it's not a red herring. I am attempting to describe a consequence of setting aside the rule of law. When you set aside your laws as and when you find it expedient to do so, it leads to abuses of power, and abuses of power erode the rights and freedoms of the people. It's a consequence which has been observed throughout history over and over again. And how will more "liberal European laws" increase our individual rights? The people of Europe do not enjoy more civil liberties and rights than we do. Far from it. In many European countries people have no right to trial by a jury of their peers; in many European countries you are not innocent until proven guilty, but guilty until found innocent; in many European countries (notably England) the right to self defense has largely been legislated away; in more socialist Europe, the government has more regulatory powers over citizens and their private affairs, especially in business. I would really like to see you justify that assertion that unconstitutionally adopting laws written by people other than our duly elected representatives will make us more free. Since this would be putting at least some American law in the hands of people who are in no way even indirectly accountable to the American people I am truly curious to see how you can possibly justify that statement.

[Perinquus]

But always within the framework of the Constitution, which is the highest law of the land. That's the point that you seem determined to miss. If it's unconstitutional, it's not within the rule of law. If you set aside the rule of law in a particular instance because it appears expedient, or even "good" to do so, it makes it easier to do it again, and again later, and for less and less laudable aims.

I thought that the Supreme Court is generally asked to rule on something because the Constitution is ambiguous about it. If it is ambiguous, then we must ask where they will seek guidance from, and whether it's international law or personal demons or the crack of the plumber's ass, I don't see what difference it makes. An enormous volume of law is precedent and interpretation based on individual preferences. The constitution provides a framework which can be stretched and twisted and pulled depending on what some particular panel of judges happens to think today; the rule of Law is a nice-sounding way of saying "the rule of Semantics and appeals to authority".

They don't rule whether or not the constitution is ambiguous, they rule on whether or not a piece of legislation violates the constitution. Usually this is fairly simple, which is why most cases never even reach the supreme court. Usually the issue can be resolved by looking at the plain meaning of the words of the law in question and the parts of the constitution relevant to it. And in those cases where the issue is ambiguous they usually turn to precedent in U.S. and English common law.

And sneering at the rule of law as some sort of fallacious appeal to authority is all well and good Mike, but show me something else that protects the rights and freedoms of the citizenry as well. The laws may be made out of appeals to authority and tradition, but they exist to restrain government as well as the people. Flout that restraint and what will check government then?

[Andrew J.]

No it's not a red herring. I am attempting to describe a consequence of setting aside the rule of law. When you set aside your laws as and when you find it expedient to do so, it leads to abuses of power, and abuses of power erode the rights and freedoms of the people. It's a consequence which has been observed throughout history over and over again. And how will more "liberal European laws" increase our individual rights? The people of Europe do not enjoy more civil liberties and rights than we do. Far from it. In many European countries people have no right to trial by a jury of their peers; in many European countries you are not innocent until proven guilty, but guilty until found innocent; in many European countries (notably England) the right to self defense has largely been legislated away; in more socialist Europe, the government has more regulatory powers over citizens and their private affairs, especially in business. I would really like to see you justify that assertion that unconstitutionally adopting laws written by people other than our duly elected representatives will make us more free. Since this would be putting at least some American law in the hands of people who are in no way even indirectly accountable to the American people I am truly curious to see how you can possibly justify that statement.

The "rule of law" is that all citizens of a nation, no matter how weak or powerful, rich or poor, are treated equally by the law, and that no person is allowed to violate it without consequence. Once again, if you have a problem with the US government exceeding or violating the Constitution, best to go back in time to the infancy of our country, because it always has and always will.

As for European laws, I was thinking specifically of Dutch drug laws and the possible legalization of marijuana and/or other off the less harmful drugs. If you want to get in to that other stuff, though, how can you think more regulation of business in America would be bad? It would certainly be better than what we've got now, ie; zilch.

And I would like a source for your "guilty until proven innocent" comment.

[Perinquus]

The "rule of law" is that all citizens of a nation, no matter how weak or powerful, rich or poor, are treated equally by the law, and that no person is allowed to violate it without consequence.

And if any branch of the government violates the Constititution (which whether you like or respect it or not, is the supreme law of the land), then they are flouting the rule of law. You seem to be arguing that it's okay in this case.

Once again, if you have a problem with the US government exceeding or violating the Constitution, best to go back in time to the infancy of our country, because it always has and always will.

I do have a problem with it. I know it has happened ever since the Constitution was ratified. That doesn't make it okay. That's exactly why our rights have become more and more circumscribed over time. Historically, it was completely predictable that this would happen. Nevertheless, it's not how our government is supposed to work.

As for European laws, I was thinking specifically of Dutch drug laws and the possible legalization of marijuana and/or other off the less harmful drugs. If you want to get in to that other stuff, though, how can you think more regulation of business in America would be bad? It would certainly be better than what we've got now, ie; zilch.

Well guess what? That is a matter for the American people to decide, through their duly elected representatives in congress. If they decide in favor of of such a course, then it will be enacted into law, if they decide against it, then it will not. That's how a democratic republic such as ours works. And guess what else? It sometimes means that laws are made which you and other individuals do not like. Well cry me a river. No one ever said life is fair. Government, politics and law making is all about making compromises and achieving what is possible. It never satisfies everyone. Sometimes, truly bad laws are enacted. That's an unfortunate fact of life as well in our imperfect world. But on the balance, it usually works better than any other system of government yet devised. Winston Churchill summed it up perfectly when he observed: "It has been said that Democracy is the worst form of government except all those other forms that have been tried from time to time."

What you seem to be arguing for is that certain laws would be good to have, and if Mr. John Q. Public doesn't like it, tough shit. He's too stupid to know what's good for him anyway. So if he can't be smart enough to pass such laws through the legislative process, in accordance with the Constitution, then such laws must be imposed from above, against his will if necessary.

Such thinking betrays a fundamentally undemocratic ideology - a lack of respect for democratic institutions, and a willingness to cast them off when they don't deliver what one wants - that I have noticed seems to be quite common on the political left.

And I would like a source for your "guilty until proven innocent" comment.

Look up any site that gives information on the Napoleonic Code. Here's one with just a comment on it:

http://www.independence.org.uk/html/bod ... he_eu.html

And here is the relevant quote:

8. The EU will oblige Britain to abandon the centuries old democratic and legal systems that have been embraced by countries throughout the world.

Our legal system will be turned upside down as we go over to the Napoleonic code system: we will be deemed guilty until proved innocent, liable to virtually unlimited detention without charge (in the absence of habeas corpus) and lose the right to trial by jury.

Here's a link to another site:

http://www.usiap.org/Viewpoints/Zhold/S ... ies13.html

And again, the relvant quote:

Again, Europe's judicial system operates under the Napoleonic Code which embraces the principle "guilty until proven innocent" while we assert that one is "innocent until proven guilty." Thus, the Napoleonic Code encourages unlimited governmental powers in legal cases, while the latter, checks that power.

And another link:

http://www.baja-mex.com/faqs.htm

And another relevant quote from the article:

In the U.S.A. we operate under the English Common Code of Law which means we are innocent until proven guilty. In Mexico and most of Latin American countries they operate under the Napoleonic Code of Law, which means that you are guilty until proven innocent.

Need I go on?

[Andrew J.]

What you seem to be arguing for is that certain laws would be good to have, and if Mr. John Q. Public doesn't like it, tough shit. He's too stupid to know what's good for him anyway. So if he can't be smart enough to pass such laws through the legislative process, in accordance with the Constitution, then such laws must be imposed from above, against his will if necessary.

Such thinking betrays a fundamentally undemocratic ideology - a lack of respect for democratic institutions, and a willingness to cast them off when they don't deliver what one wants - that I have noticed seems to be quite common on the political left.

Fucking duh. If one method doesn't give me what I want, I try another method. And legislative representatives hardly represent the will of the people as well as you seem to think. Congress passes all sorts of laws that the majority of people don't like. A lot of times people vote for candidates who holds a number of positions they don't agree with because he is "the lesser of two evils."

Hm. This seems to have become the beginning of a rant about the limitations of a two-party system. Sorry.

[Perinquus]

What you seem to be arguing for is that certain laws would be good to have, and if Mr. John Q. Public doesn't like it, tough shit. He's too stupid to know what's good for him anyway. So if he can't be smart enough to pass such laws through the legislative process, in accordance with the Constitution, then such laws must be imposed from above, against his will if necessary.

Such thinking betrays a fundamentally undemocratic ideology - a lack of respect for democratic institutions, and a willingness to cast them off when they don't deliver what one wants - that I have noticed seems to be quite common on the political left.

Fucking duh. If one method doesn't give me what I want, I try another method.

How arrogant of you. The ends justify the means. This is exactly the sort of thinking that made the French Reign of Terror possible, and the rule of law is exactly the thing that restrains this sort of thing. I see you missed that point. Or maybe it's that you don't care. Or rather, you don't care because you imagine yourself as the one getting what he wants. I suspect if you had to live in a country where someone else was the one getting whatever he wanted enacted by any means necessary, you wouldn't be so keen to praise the virtues of "the end justifies the means."

You are exactly the sort of person our founding fathers feared most, and which our form of government was set up check - the person who will not be observe restrictions on his authority. The kind of person who is most easily corrupted by power.

The interesting thing is, many of the liberal intelligentsia really do feel this way as well. You feel you know what should be, and what is good so much better than the rest of us poor peons. And since you do know this, you'll get what you want, by hook or by crook. You're not about to let mere laws or mere ethical or moral considerations stop you. The difference is that most of these arrogant intelligentsia ("The Anointed" as the economist Thomas Sowell calls them), while they do feel this way in their hearts, and while they do feel they know better than the rest of us, also realize just how repugnant and disgusting most of the American people find such arrogant presumption, so they are careful to disguise this fact about themselves. It's rare that you find one who is so willing to openly express his utter contempt and disregard for democratic institutions.

You'd make a great dictator. Thank god I don't have to live under you. The last thing I either want or need is a person or class of people who make a living out of knowing what's good for me better than I am supposed to know it myself.

And legislative representatives hardly represent the will of the people as well as you seem to think.

And having laws imposed by an unaccountable elite does?

Congress passes all sorts of laws that the majority of people don't like. A lot of times people vote for candidates who holds a number of positions they don't agree with because he is "the lesser of two evils."

Which only proves no system is perfect. At least democratic republicanism safeguards freedom better than having laws made and enacted by fiat, which you seem to feel is okay. But again, I suspect you would only feel that way as long as you were the one getting your way.

[Andrew J.]

How arrogant of you. The ends justify the means. This is exactly the sort of thinking that made the French Reign of Terror possible, and the rule of law is exactly the thing that restrains this sort of thing. I see you missed that point. Or maybe it's that you don't care. Or rather, you don't care because you imagine yourself as the one getting what he wants. I suspect if you had to live in a country where someone else was the one getting whatever he wanted enacted by any means necessary, you wouldn't be so keen to praise the virtues of "the end justifies the means."

You are exactly the sort of person our founding fathers feared most, and which our form of government was set up check - the person who will not be observe restrictions on his authority. The kind of person who is most easily corrupted by power.

Hell, I don't even have any power, and I'm already corrupt.

Mmm, the French Revolution...fear, chaos, terror, unimaginable suffering, a rainof tears falling on a rain of blood. Isn't that wonderful?

All fight, all right, all points conceded. I agree with you; I don't really think SCOTUS basing their rulings on foreign laws is legal or especially beneficial. Of course, now you have much larger problems, having shot yourself in the foot with you ill thought-out "guilty until proven innocent" comment. I'm just going to sit back and watch our European members rip you a new one. Ta ta!

[z020898]

This has been a very interesting argument. The only problem with the claim that the Supreme Court should not use international law is that it does not matter what the Supreme Court uses. Anything they want to argue can be justified based on the constitution. Brown v. Board of Education, Roe v. Wade and the recent case that struck down the Sodomy law in Texas seem to clearly prove that. The Supreme Court is currently unaccountable to anyone and rather they site international law, English Common Law or the Constitution doesn't matter.

The Supreme Court should not do a lot of things, including ignore the historical meaning of the constitution, and change the laws at will. Since it is doing these two things I have no problem with it using International Law to make its decisions since rather it examines it or not will not effect its decisions.

[Colonel Olrik]

E.U law debate split.