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Kuros
Joined: 27 Apr 2004
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 Posted: Tue Jun 26, 2012 3:31 pm Post subject: |
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| Fox wrote: |
| bucheon bum wrote: |
Just in case he hasn't made it clear enough for you on this thread, Zackback is a troll.
Scalia's rant/dissent
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| �The issue is a stark one,� he went on. �Are the sovereign states at the mercy of the federal executive�s refusal to enforce the nation�s immigration laws? A good way of answering that question is to ask: Would the states conceivably have entered into the union if the Constitution itself contained the court�s holding?� If this had been the original view of the Framers of the Constitution, �the delegates to the Grand Convention would have rushed to the exits from Independence Hall.� In other words, according to Scalia, if Arizona had known what was coming from his colleagues yesterday, they never would have joined the United States. No other state would have either. The Arizona ruling, in Scalia�s telling, would have destroyed the country even before it was born. |
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I wonder if any of these thoughts passed through his mind when he was signing on to overturn Montana's campaign finance laws. |
Many in the legal community consider Scalia's opinions to fall somewhat short of principled jurism. By the end of this week, I'll compare his dissent in the Obamacare decision with his opinion in Gonzales v. Raich.
That's right, I'm calling it ahead of time. |
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Titus
Joined: 19 May 2012
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| Posted: Tue Jun 26, 2012 3:49 pm Post subject: |
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It doesn't matter. Arizona has passed laws that dissent from the US constitution and it makes no difference if the Constitution permits it. The USG will no matter what AZ demands crush the resistance.
http://unqualified-reservations.blogspot.ca/2009/02/gentle-introduction-to-unqualified.html
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Answer: the hog-devil in USG is its constitution. Note the small c. Sadly, it is impossible to salvage the word constitution, small c, from its Orwellian fate. But we will pretend to try for a moment - if just to parse the scene of the crime.
Like most American political doxology, the word constitution comes from British politics. (In general, if any American wants to understand any phenomenon in American history pre 1940 or so, a good exercise for clearing the mind is to see it again through the eyes of London.)
Britain, of course, is famous for its unwritten constitution - a phrase which strikes the worm-gnawed American brain as oxymoronic. In fact, unwritten constitution is a tautology. It is our written constitution - or large-C Constitution - which is a concept comical, impossible, and fundamentally fraudulent. Please allow me to explain.
England had a constitution well before America had a Constitution, and De Quincey (whose political journalism is remarkably underrated) defines the concept succinctly:
...the equilibrium of forces in a political system, as recognised and fixed by distinct political acts...
In other words, a government's constitution (small c) is its actual structure of power. The constitution is the process by which the government formulates its decisions. When we ask why government G made decision D1 to take action A1, or decision D2 not to take action A2, we inquire as to its constitution.
Thus the trouble with these written constitutions. If the Constitution is identical to the constitution, it is superfluous. If the Constitution is not identical to the constitution, it is deceptive. There are no other choices.
It's easy to show that the latter is the case for USG. For example, the two-party system is clearly part of USG's constitution. But not only does the Constitution not mention political parties, the design notes indicate an intention to preclude them. Obviously this was not successful.
For another example, American law schools teach something called constitutional law, a body of judicial precedent which purports to be a mere elucidation of the text of the Constitution. Yet no one seriously believes that an alien, reading the Constitution, would produce anything like the same results. Moreover, the meta-rules on which constitutional law rests, such as stare decisis, are entirely unwritten, and have been violated in patterns not best explained by theories of textual interpretation. Thus the small 'c' in constitutional law is indeed correct.
In retrospect, the written-constitution design is another case of the pattern of wishful thinking that appears over and over again in the democratic mind. From the perspective of a subject, political stability is a highly desirable quality in a sovereign. We should all be ruled by governments whose constitution does not change. The error is to assume that this outcome can be achieved by simply inscribing a desirable constitution. This is a quick dive off the pons asinorum of political engineering, the quis custodiet problem.
If the constitution is in fact stable, inscribing it (while a prudent clerical task) makes it no more stable. If the constitution is not in fact stable, the equilibrium of forces can shift away from the original intent of the designers, and the inscription becomes a fraud.
An obstacle, in fact, to any real understanding of the actual constitution. Which, as we'll see, is so heinous that it needs every bit of camouflage it can get. And thus the bug becomes a feature. |
It's fun to follow the Supreme Court and Monday Quarterback but in the end the powerful will do whatever the hell they want. Arizona has been scheduled for a new demos that won't be as troublesome as the current demos. The decision is made. It will be done. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Tue Jun 26, 2012 4:05 pm Post subject: |
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Like most American political doxology, the word constitution comes from British politics. (In general, if any American wants to understand any phenomenon in American history pre 1940 or so, a good exercise for clearing the mind is to see it again through the eyes of London.)
Britain, of course, is famous for its unwritten constitution - a phrase which strikes the worm-gnawed American brain as oxymoronic. |
The Tory chauvinism truly shines through in these passages. Bravo, old chap. |
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