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Posts Tagged ‘constitution’

Almost every debate in American politics, about the law and what things it should or should not allow, brings up the issue of constitutionality.

The US Constitution, drawn up in the late 1700s when little ol’ America was just starting to cut loose of the apron strings and make its own way in the world, has formed the bedrock of its legal system ever since, and provided vital and unassailable decisions on how hundreds of millions of people’s lives should be run.

I’m not really a fan.

Don’t get me wrong, it’s got some good ideas. It’s just weird how reverentially it’s treated sometimes. A lot of major political players and law-makers seem to act like it’s the unquestionable be-all and end-all of every legal dispute that can be imagined. If what you want to do is unconstitutional, no dice, end of.

And I don’t get it. If you share the values it espouses, then by all means embrace it for that, but… You do know that whether or not something matches up with what some guys 250 years ago had in mind isn’t as important as whether it’s actually a good idea, right?

I’ve seen this a number of times with regard to gun control. People who like their guns point to the “right to bear arms” guaranteed by the Constitution, while those on the left often claim that this was only intended to refer to the 18th century weaponry that existed at the time it was written. The country’s founders couldn’t have predicted the range of pistols, assault rifles, and the like available today, and wouldn’t have condoned their unchecked possession.

It’s hard to imagine what could be less useful to the gun control conversation that the imagined and hypothetical opinions of some people two centuries dead on the subject of modern technologies of which they had absolutely no knowledge. Can’t we try to be smart and figure out how it makes sense to act, based on what we know now?

Actually, you don’t even have to go as far as the Second Amendment to find a good example:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This is generally about the government staying out of people’s way, which is largely a good thing. But the question of exactly what constitutes “freedom of speech”, against which no law shall be made, is a notoriously knotty one. There’s no mention of fraud, libel, or shouting “Fire!” in a crowded theatre anywhere in the clause. There have been numerous legal decisions since the Constitution regarding these subjects, as well as on things like obscenity and campaign finance, and the law itself acknowledges a good deal of nuance to an obviously complex issue.

But it still tends to be framed around whether certain harmful or undesirable forms of speech or expression are “constitutional”. It always seems to be about whether something “counts” under that part of the Constitution. Surely a decision to restrict or punish certain types of behaviour should stand on its own?

In practice, I imagine it usually does. The law is trying to reflect what behaviours are actually desirable or should be punished, and it probably doesn’t make a lot of difference that technically this takes the form of contrivances and qualifications being continually added to those important, constitutional principles. It just seems a strange obeisance to continue making.

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It’s another anarchistastic day here at Cubik’s Rube.

Here’s an excerpt of a book by a guy called Larken Rose, in which he makes some interesting points about government as a religious belief. Here’s a video in which he argues against the US Constitution.

He makes a case worth considering. Specifically, he sets out to highlight the inherent ridiculousness and injustice of the bit of the Constitution which says that “The Congress shall have Power To lay and collect Taxes“, by comparing it to a document he’s drawn up himself declaring his right to come and take your stuff.

It’s a striking analogy, but what’s frustrating is quite how much stock he seems to place in it. It’s very interesting to look at what his own manufactured documentation has in common with the US constitution. It’s less interesting to just insist “look, they’re exactly the same” and not examine why people might tend to think that one has more validity than the other.

The idea that some guy you don’t know can give himself permission to rob your house and take your stuff, and justify it with some fancy fonts and a few irrelevant signatures, is obviously ludicrous. That’s his whole point. But most people will be able to list what seem, at least superficially, like some pretty compelling reasons why it’s not the same when the government does it. People justify taxation by pointing to all the public services it’s used to pay for, for example.

You might not think any of these justifications hold water; I guess an anarchist would assert that there’s nothing of importance currently done by the government which couldn’t be achieved instead through other, cooperative, voluntary means. But if you have a rebuttal to what most people would consider the obvious place to take the argument next, then let’s focus on that. It might be more useful than simply marvelling at how almost every single person on the planet must be some kind of mindless sheep to believe something so idiotic.

Give the statists a little credit, is my point.

While I’m at it, let’s look at the opposite end of the spectrum of attempted anarchist proselytising.

In my sporadic and episodic reading of An Anarchist FAQ, I’ve waded through a fair few pages of talk about “neo-classicism” and “post-Keynesian economics” and “marginal productivity theory” and the like. Now, I’m certainly glad that someone’s analysing these things from an informed economic view, but for most people starting to feel disillusioned by capitalism, government, or the world in general, these seem like secondary and rather esoteric concerns.

The main, burning question about anarchism for me, which I suspect would be shared by a lot of the uninitiated, and for which I’m still yet to reach an answer, would be something like: “You know, the government does, like, quite a lot of shit, and so, like, if there was no government, then, like, how would any of this shit get done?”

Be honest: something like that is what goes through your mind whenever I start blathering on about this stuff again as if it were remotely practical, right?

If anarchists actually have a coherent plan in response to this obvious line of questioning, I think they should really make that more of a front-line argument. Most people won’t really even consider anarchy as a plausible option, no matter how many texts you publish demonstrating capitalism to be totally fucked up in principle. And if you want to insist that’s because we’ve been brainwashed by the manipulative oligarchs into thinking that things have to be this way, then fine – just be aware that it doesn’t actually change anything, no matter how many times you point that out to us.

Okay? Good. Well, off you go. Back to smashing the system.

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The Freedom From Religion Foundation’s ongoing legal battle, which challenges the US government’s recognition of an official “National Day Of Prayer”, has had a positive ruling overturned and the case thrown out by a Court of Appeals.

They still have recourse, and are already moving on with plans to have the case reheard. The law they’re challenging has been in place since 1952, and designates the first Thursday in May as a time for Americans “to turn to God in prayer and meditation”.

You might remember that the US also has this thing called the Constitution, and that one of the first things they decided to add to it when they realised it wasn’t quite finished was the idea that “Congress shall make no law respecting an establishment of religion”.

So you can see why this law which respects an establishment of religion might rub a few people up the wrong way.

The technicality on which the challenge has been thrown out this time is that the Foundation apparently lack “standing”. This means that it’s not their place to challenge the law, because they’re not personally being harmed by it or directly losing out in any way.

You can see why there ought to be some limitations along these lines on what lawsuits you can bring. Otherwise, you can imagine all sorts of frivolous and time-wasting cases being brought to court, by people who really have no stake in what they’re complaining about except their own personal indignation. But should the FFRF really stay out of this because it doesn’t affect them negatively in any way, as the court effectively ruled?

Daylight Atheism said it best:

In this case, the Seventh Circuit found that the FFRF had suffered no injury from the National Day of Prayer. Apparently, this is true even if public money is used to sponsor and organize the day’s events, even if participation is restricted to certain religious sects that work hand-in-glove with elected officials, even if NDP events specifically endorse one version of religious scripture over others, even if said events include official statements questioning the patriotism, morality or citizenship of those who refuse to participate. Never mind all that – when the President tells you to pray, you can say no, and that’s all it takes for your civil rights not to be violated!

According the Foundation’s report, Judge Barbara Crabb, who’d initially ruled in favour of their challenge last year, pointed out that enacting a National Day of Prayer, sponsored by public money and using elected representatives’ time and authority to instruct people to get praying, is “no more within the purview of government” than it would be if they passed a law and instituted another National Day which encouraged everyone to “fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic”.

And you can just imagine how badly, if they did that, the Christian right would lose their shit.

There’s no un-tortured legal reasoning I can see behind this decision. The decision-makers are just doing what they want, because they’re Christians, and they pray, and they think praying and being a Christian is all just fine, and anyone who doesn’t want to join in isn’t really suffering and should just buck up already. You don’t have to pray if you don’t want to. And if you’ve got some other gods of your own, you can do your chin-wagging with them instead. Everyone’s happy, right?

Well, clearly not. This law seems to be straight-forwardly unconstitutional and unconscionable. Government’s place in matters of people’s religion should be to stay the hell out of it.

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