Whaddaya mean, "unconstitutional"?

[Librarian]

Dave Kopel just released an forthcoming article whose focus is the Patient Protection and Affordable Care Act (“PPACA”), (download from SSRN here: http://papers.ssrn.com/sol3/papers.c...act_id=1988167), and the first section, bottom of page 2 through top of page 8, is a discussion of what different people mean by the term "unconstitutional".

I. Humpty Dumpty: “The” Meaning of “the Constitution”
When somebody proclaims an action “unconstitutional,” what do they mean?

There is no single answer to that question; different people mean different things, and sometimes the same people mean different things at different times.3 It is difficult to have intelligent and productive conversations about constitutionality when the participants in those conversations are using the word “unconstitutionality” in differing, ill- defined, and/or equivocal ways – which is one big reason why so much constitutional discourse is unintelligent and unproductive.4

Which of his suggested "families" do you mean when you use "unconstitutional"?

Private poll, multiple responses allowed.

==================================
ETA.

Rats.

Poll choices messed up, and I just noticed.

I tried to cut and paste from the paper:

(1) inconsistent with the text of the Constitution,
(2) inconsistent with social understandings about what the Constitution means,
(3) inconsistent with statements that various people (especially, Supreme Court Justices) have made about or in the name of the Constitution,
(4) inconsistent with predictions about what various people (especially, Supreme Court Justices) are likely in the future to say about or in the name of the Constitution), and
(5) inconsistent with certain policy or other personal preferences of the speaker.

and both (3) and (4) were too long (over 100 char); I accidentally duped one option and left out (3).

Sigh.

Based on responses, I don't think it changes much, but my apologies.

[bohoki]

i take "unconstitutional" to mean contrary to specified freedoms mentioned in the constitution and or court rulings defining such enumerations

[POLICESTATE]

Unconstitutional means out of line with the Constitution. Or more simply, "not" of the Constitution. Therefore UN-constitutional.

If people can't agree on that, then they aren't going to agree on much else.

And that is where politicians spend most of their time: not agreeing on much.


I don't know which family I fit in, don't care. Un-something is not something.

[taperxz]

Due to "reference" We as citizens have the ability to look at certain results of the constitution. Since this is the case, unconstitutional seems to take on how one right is perhaps interpreted one way and another right is scrutinized another.

Case and point, freedom of speech v. RKBA. People can generally say what they want within reason, but people can't really keep and bear arms the way they exercise their freedom of speech. Therefore many gun laws tend to be considered unconstitutional.

[mtptwo]

Just because something isn't enshrined in constitution doesn't mean that constitution doesn't apply to or cover it. There is no mention of murder in the constitution for instance, but all most all of us agree that making murder illegal is constitutional.

My take: A combination of text and history of interpretation (of which does and must change with time)

[POLICESTATE]

Due to "reference" We as citizens have the ability to look at certain results of the constitution. Since this is the case, unconstitutional seems to take on how one right is perhaps interpreted one way and another right is scrutinized another.

Case and point, freedom of speech v. RKBA. People can generally say what they want within reason, but people can't really keep and bear arms the way they exercise their freedom of speech. Therefore many gun laws tend to be considered unconstitutional.

I disagree, many guns laws ARE unconstitutional. I don't care what other people consider, especially those same people who use their 1A rights to denigrate and assault 2A rights. To me it's all or nothing. Either we have rights or we don't have rights.

In theory we have the right to keep and bear arms.
In practice it's not so much a right as an entitled, traditional privilege.

If we treated 1A like 2A can you imagine? We wouldn't have CGN, or maybe we would but we'd only have 10% of the people who can get a "may issue" LTP (License to Post) and of course they'd have to be very careful about what they post and how they post it.

Can you imagine if we treated the 4A and 5A like 2A? We're going that way for sure, but take our "progress" on the reinterpretations of those amendments or the circumvention of them into account and see what the logical outcome is.

Ultimately it's a country where everyone has rights but those rights are so subordinated to the common good that in practice we have no rights at all.

Without 2A we would have no hope of restoring practical rights in that situation. Founding fathers wrote about things like this 200 years ago, fact is most of them are far smarter and fair to their fellow man than just about all of our so-called leaders today. Yet somehow they are painted as "quaint" and from a "different time". These people CHANGED human history with very forward-thinking ideas based on ancient principles. They also recognized that no good thing lasts forever, that things have to be reset from time to time, otherwise it just goes bad.

And people think Obama, or GWB is some kind of inspiring figure? Hahaha. Embarrassing yes, inspiring no.

[yellowfin]

To me, it refers to being out of phase with the text of the Constitution, the context under which it was adopted (e.g. Federalist Papers and Declaration of Independence), and the general sense of Anglo American traditional concept of liberty. Somewhere between 50 and 90 percent of government as we know it today is in flagrant violation thereof yet little or nothing is done about 75-80% of it.

There was some talk a few years ago about freezing government spending at 2008 year levels--I want 1808 year levels of government.

[taperxz]

I disagree, many guns laws ARE unconstitutional. I don't care what other people consider, especially those same people who use their 1A rights to denigrate and assault 2A rights. To me it's all or nothing. Either we have rights or we don't have rights.

The laws in CA take our rights away clearly

In theory we have the right to keep and bear arms.
In practice it's not so much a right as an entitled, traditional privilege.

In CA. Not so much in most states where they do have that right in their everyday lives
If we treated 1A like 2A can you imagine? We wouldn't have CGN, or maybe we would but we'd only have 10% of the people who can get a "may issue" LTP (License to Post) and of course they'd have to be very careful about what they post and how they post it.

I think most here would not care if CGN went away because we had very few laws restricting firearms. just sayin... Even CGF will dis band once their mission is accomplished. (their words)

Can you imagine if we treated the 4A and 5A like 2A? We're going that way for sure, but take our "progress" on the reinterpretations of those amendments or the circumvention of them into account and see what the logical outcome is.

And your point is?

Ultimately it's a country where everyone has rights but those rights are so subordinated to the common good that in practice we have no rights at all.

Ever been to another country? RIGHTS, we have!

Without 2A we would have no hope of restoring practical rights in that situation. Founding fathers wrote about things like this 200 years ago, fact is most of them are far smarter and fair to their fellow man than just about all of our so-called leaders today. Yet somehow they are painted as "quaint" and from a "different time". These people CHANGED human history with very forward-thinking ideas based on ancient principles. They also recognized that no good thing lasts forever, that things have to be reset from time to time, otherwise it just goes bad.

If the founding fathers were SOOO smart, why are we in this predicament today? Why must we wait for SCOTUS for an interpretation of the smart peoples ideas??

And people think Obama, or GWB is some kind of inspiring figure? Hahaha. Embarrassing yes, inspiring no.

The President can't change things. Only the people can.
__________________

[POLICESTATE]

The laws in CA take our rights away clearly

I think most here would not care if CGN went away because we had very few laws restricting firearms. just sayin... Even CGF will dis band once their mission is accomplished. (their words)
I used CGN as an example, the same effect would apply to every other site, like Facebook, The Sewing Circle, Comments sections on news articles would disappear, eh whatever.


And your point is?
That we would end up with no rights at all.


Ever been to another country? RIGHTS, we have!
Yes I have been to other countries, and I understand what you are saying, but looking at the ideal and what we have now I see a lot of disparity between the two. I also see it trending to less rights. Must remain eternally vigilant and all that right?


If the founding fathers were SOOO smart, why are we in this predicament today? Why must we wait for SCOTUS for an interpretation of the smart peoples ideas??
They were, they said in their writing that people should be able to redo their government, that government only operates by consent of the governed. True we can argue we still have that today, but the governed are more and more turning into self-absorbed sheep. So in effect, government will lose the consent of a free people (sorry but a distracted and dependent people are not a free people) and then what do we have left over?

I'm willing to bet that most founding fathers would have expected the people of the USA to take a more firm hand in their government than we did. True they couldn't foresee radio, TV or the internet and of course all the other toys we have now. Which also help to dumb us down I might add.


The President can't change things. Only the people can.
That IS true to an extent, except when people become convinced that the president CAN change things, then the perception can begin to become the reality.
__________________

Perception and reality are two different things, but they can flip. The reality is guns are a right, the perception is they're "kind of" a right, some have even said a deprecated right. Once enough perception is changed the reality will change and guns will cease to be a right. Why do you think the topic of the SCOTUS line-up and its effects on our 2A right are always a hot topic on CGN?

[yellowfin]

Ever been to another country? RIGHTS, we have!

While true, this is only saying that a person with Alzheimer's has more mental capacity than a garden snail.

If the founding fathers were SOOO smart, why are we in this predicament today?

They wrote the manual for operating the country, but sometime around the 1910's people quit going by the instructions and started running it outside the recommended parameters. That's the problem, not how they wrote things.

Why must we wait for SCOTUS for an interpretation of the smart peoples ideas??

It's not that I need advice on how to act within their smart ideas, it's how government reacts to how I act that's the problem which SCOTUS needs to fix. We have a problem of government saying no to WAY too many things we'd do if otherwise left alone. There's a LOT of things I'd do if it wouldn't cost my livelihood, my future, and my freedoms to do so, all of them perfectly harmless, ethical, and beneficial to other people but prohibited by Uncle Grinch.

The President can't change things. Only the people can.

I'd love to be able to change prior presidents' executive orders or judicial appointments, but as merely part of the average "we the people", I can't thus far in history, nor can 10 or even 100 of my friends together.

[taperxz]

I'd love to be able to change prior presidents' executive orders or judicial appointments, but as merely part of the average "we the people", I can't thus far in history, nor can 10 or even 100 of my friends together.

This is where you are mistaken. "the people" are CGN, NRA, SAF. No President can just change things all together. It takes Congress and the "WILL" of the people.

2A rights in this country are actually pretty good! Just not if you live in New York Or CA (and a few other states)

[kemasa]

I don't see what I would consider the answer, which would be the intent of the Constitution, which is not the social understanding of it (some people just don't understand anything) and may not be the specific text. Closest would be the text, but as with anything it is not always clear.

For example, using high tech equipment to look into a person's home. Is that really a search? I would say so, but others might not.

[BigDogatPlay]

A strict read would be inconsistent with the text (and the intent) of the Constitution, and that's how I vote. I would also argue that in our modern society, where the meaning of words and phrases have been greatly blurred in common usage and in the media the larger population might believe that the second answer is most correct.

inconsistent with social understandings about what the Constitution means

[morfeeis]

inconsistent with the text of the Constitution

anything else is misusing the Constitution to fit your needs.

[sholling]

I use the term to refer to any law or regulation that is inconsistent with the general public meaning of the text of the constitution at the time it was ratified or amended. This is the method championed by Professor Randy Barnett in his book "Restoring The Lost Constitution: The Presumption of Liberty". Professor Barnett argues that it was written to be plainly understood by the people and that the only way that we can assure a consistent application of the constitution is to read it via the lens of plain English as the average American of the time would have understood the words and phrases. He rightly argues that any other way of reading the constitution subjects it to the political whims and prejudges of later judges. In other words our current system of crystal ball gazing and navel contemplation to define meaning or intent. Or as we sometimes see from judges - just plain rejection of the limits imposed by the constitution in favor of a favored political cause.