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Mon Dec 31, 2012, 12:17 PM

Georgetown law prof: Give up on the constitution?

Clip: “Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.”

"This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation." http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html?exprod=myyahoo&_r=0

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Reply Georgetown law prof: Give up on the constitution? (Original post)
AlinPA Dec 2012 OP
Freddie Dec 2012 #1
DavidDvorkin Dec 2012 #2
coalition_unwilling Dec 2012 #5
DavidDvorkin Dec 2012 #9
coalition_unwilling Dec 2012 #14
Nye Bevan Dec 2012 #10
AlinPA Dec 2012 #6
patrice Dec 2012 #12
CTyankee Dec 2012 #25
DavidDvorkin Dec 2012 #32
CTyankee Dec 2012 #33
moman Dec 2012 #3
riverbendviewgal Dec 2012 #4
AldoLeopold Dec 2012 #7
Bake Dec 2012 #21
AldoLeopold Dec 2012 #22
Bake Dec 2012 #26
AldoLeopold Dec 2012 #28
Nye Bevan Dec 2012 #35
Odin2005 Dec 2012 #38
AldoLeopold Dec 2012 #41
Nye Bevan Dec 2012 #43
patrice Dec 2012 #8
randome Dec 2012 #11
patrice Dec 2012 #15
NYC_SKP Dec 2012 #18
patrice Dec 2012 #19
patrice Dec 2012 #20
AldoLeopold Dec 2012 #30
Nye Bevan Dec 2012 #17
randome Dec 2012 #24
AldoLeopold Dec 2012 #29
forthemiddle Dec 2012 #37
Cali_Democrat Dec 2012 #13
Nye Bevan Dec 2012 #16
CTyankee Dec 2012 #23
oldhippie Dec 2012 #45
Bake Dec 2012 #27
AldoLeopold Dec 2012 #31
Coyote_Tan Dec 2012 #34
Nye Bevan Dec 2012 #36
nadinbrzezinski Dec 2012 #39
BanTheGOP Dec 2012 #40
aptal Dec 2012 #42
moondust Dec 2012 #44

Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:22 PM

1. An excellent read, thanks for sharing

He's not so much advocating "giving up" on the Constitution as finding ways to improve those things that are impeding progress.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:22 PM

2. Then what's the point of any country having a fundamental law of any kind?

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Response to DavidDvorkin (Reply #2)

Mon Dec 31, 2012, 12:24 PM

5. Britain does just fine without a written Constitution - n/t

 

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Response to coalition_unwilling (Reply #5)

Mon Dec 31, 2012, 12:41 PM

9. Britain does in effect have a constitution

It's not a single written document, but it has a collection of laws, traditions, and legal rulings that together add up to the country's fundamental law.

We do have a constitution. If we collectively decide to ignore it, then we will either descend into legal chaos or, more likely, we'll quickly evolve our own collection of laws, traditions, and legal rulings that will function as our new fundamental law. The result will be the same as the current situation, but with a lot of needless disruption along the way.

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Response to DavidDvorkin (Reply #9)

Mon Dec 31, 2012, 12:50 PM

14. Key phrase is 'in effect'. Britain has no single document called a

 

"Constitution," although precedent and common law function effectively as one for it.

I like our Constitution and don't want to see it become nullified, especially b/c it contains provisions for its own modification and evolution within it, an orouboros of self-governance if you will. I do think some of its provisions and language are a bit antiquated now, but overall I say we keep it

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Response to coalition_unwilling (Reply #5)

Mon Dec 31, 2012, 12:45 PM

10. Not really. People get arrested there for making "hurtful" posts on Facebook.

A UK Government with a big parliamentary majority has way too much power. The House of Lords can only delay legislation, and laws are not subject to judicial review (except in limited cases by the European courts).

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Response to DavidDvorkin (Reply #2)

Mon Dec 31, 2012, 12:28 PM

6. He points out that NZ and Great Britain have no constitution and can function. I'm not arguing

for his point, but we are quite dysfunctional now and he has some good points to think about.
"Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens."

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Response to DavidDvorkin (Reply #2)

Mon Dec 31, 2012, 12:46 PM

12. I don't think it's an either:or proposition, but rather a call to awareness about what we are

doing. As I mentioned below, there's a mistake that is similar to thinking that 2 X 2 = 4 is identical with 1111 of anything.

We should not treat any words as though they are identical with what words, by their very nature, ONLY refer to. That's a rather superstitious supposition if you think about it.

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Response to DavidDvorkin (Reply #2)

Mon Dec 31, 2012, 02:03 PM

25. I don't hearhim saying there should be NO constitution, just not this one as presently

constructed. Plenty of modern advanced countries are constitutional democracies, such as many of those in western Europe. Many of them function perfectly well. Better than ours in many respects (e.g. rights of women, sensible gun control).

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Response to CTyankee (Reply #25)

Mon Dec 31, 2012, 02:44 PM

32. No, but he is saying that we should pick and choose which parts of it to pay attention to

In which case, I repeat, what's the point of having a so-called fundamental law? The fact is, we do have it. The arguments are always about interpretation and application, not whether to acknowledge the existence of our own fundamental or whether to regard it as fundamental.

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Response to DavidDvorkin (Reply #32)

Mon Dec 31, 2012, 04:29 PM

33. And that's what he is saying is the problem. He says our system is not functioning

optimally and we can do better.

I for one am gratified to hear a law professor finally say this, altho Justice Ginsburg alluded to it a couple of summers ago during Arab Spring. She said that she would not recommend that new emerging democracies fashion their constitutions after ours. She talked about the constitution of South Africa instead...

This is why there is a trend of these emerging democracies to steer away from using our Constitution, which at one time was the sine qua non. It no longer is. It is considered unwieldy for the needs of people in a modern 21st century democracy.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:23 PM

3. When You Have A Decent Argument?

Argue the facts.When you don't ?Argue The Constitution!

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:23 PM

4. I agree

and he does make sense..

here is his bio on wiki
http://en.wikipedia.org/wiki/Louis_Michael_Seidman

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:29 PM

7. FINALLY

We're getting to brass tacks. Our Constitution is the oldest one in existence. Its time for a major revision or re-write. A Second Constitutional Convention.

Good on this law prof.

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Response to AldoLeopold (Reply #7)

Mon Dec 31, 2012, 01:41 PM

21. I shudder to think what kind of Constitution we'd come up with today.

Freedom of religion? Gone.
Free speech? Gone.

Holy shit.

Bake

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Response to Bake (Reply #21)

Mon Dec 31, 2012, 01:50 PM

22. Don't be scared

Change isn't always for the worst.

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Response to AldoLeopold (Reply #22)

Mon Dec 31, 2012, 02:06 PM

26. I'm not willing to throw away the Bill of Rights for a hope and a promise.

This country is almost 50/50 divided between people who care about the nation and those who care only about themselves, who would be more than happy to do away with freedom of speech, freedom of/from religion, freedom from unreasonable searches and seizures, etc.

Not risking it. There's nothing wrong with the current Constitution that a good electoral sea change won't cure.

Bake

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Response to Bake (Reply #26)

Mon Dec 31, 2012, 02:11 PM

28. I'd throw away the 2nd amendment in a heartbeat on a referendum

Not to mention the entire 3 branch system which many Parliamentary democracies chortle at on a regular basis because of its divisiveness.

Here's a great idea - let's make three branches of government and have each one, including two houses in the legislative, be owned by a different party. Chances are they'll all agree for the good of the nation...



Even Washington knew that the system wouldn't survive in a party system. And it isn't. Parliamentary democracies work on a completely different wavelength -

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Response to AldoLeopold (Reply #28)

Mon Dec 31, 2012, 04:44 PM

35. So you like and admire the system in, say, Italy? (nt)

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Response to Nye Bevan (Reply #35)

Mon Dec 31, 2012, 08:17 PM

38. How about Germany?

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Response to Odin2005 (Reply #38)

Mon Dec 31, 2012, 08:59 PM

41. Yes and Yes

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Response to Odin2005 (Reply #38)

Mon Dec 31, 2012, 10:28 PM

43. A country that exterminated 6 million Jews 70 years ago?

I think it's fair to say that the US Constitution has a better track record over the last century or so.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:38 PM

8. We should ask ourselves if we are doing with the Constitution what others have done to

The Bible: mistaking the words for the real world that the words ONLY refer to. This is like insisting that 2 X 2 = 4 IS THE EXACT SAME THING AS IIII of anything.

This error in logic causes people to throw away the nutritional content and then to make a false god out of "the peel". Think banana here; it needs the peel to be a banana, but the peel is NOT the point of the thing that we refer to as a banana.

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Response to patrice (Reply #8)

Mon Dec 31, 2012, 12:46 PM

11. Nice analogy.

We would do fine without the Constitution. We have laws. We need better laws. That's all it takes.

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Response to randome (Reply #11)

Mon Dec 31, 2012, 12:50 PM

15. I would hope for somekind of orienting statement of values about which it is understood that they

are not the laws themselves.

And perhaps we'd need a new way for people to be directly involved in creating those laws instead of the indirect pay to play game that we have now.

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Response to patrice (Reply #15)

Mon Dec 31, 2012, 01:01 PM

18. How would such a statement be different from a Constitution.

I would argue that there's little difference.

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Response to NYC_SKP (Reply #18)

Mon Dec 31, 2012, 01:09 PM

19. I hear you on that. I'm just concerned about people having to sell everything they own in order to

move to a different state, in a market that COULD be fully aware of your disadvantaged position, so that one doesn't have to live in a state that comes to a legal configuration that is against one's understandings of things like Civil Rights (ethnic & sexual orientation), women's autonomy over their own bodies, religious cartels that rule your state, etc. etc. etc.

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Response to patrice (Reply #19)

Mon Dec 31, 2012, 01:11 PM

20. And then after they do that, what happens if the state that they moved to changes to something that

is intolerable too?

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Response to patrice (Reply #15)

Mon Dec 31, 2012, 02:18 PM

30. National referendums

Its done pretty much everyplace else but here. We live in a Republic, as in "Friends, Americans, Countrymen, lend me your SuperPACs" - which is why (fun fact incoming) all the original DC buildings were designed using Roman architecture and not Greek.

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Response to randome (Reply #11)

Mon Dec 31, 2012, 12:56 PM

17. And what if we have a Republican President, House and Senate,

who pass a law extending their terms to 20 years, establish Christianity as the official national religion, mandate Christian prayer in all schools, ban all abortions without exception and make it illegal to criticize any Government official?

Would that be "doing fine without the Constitution"?

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Response to Nye Bevan (Reply #17)

Mon Dec 31, 2012, 01:58 PM

24. We need a framework, I agree. It doesn't necessarily have to be the original Constitution.

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Response to Nye Bevan (Reply #17)

Mon Dec 31, 2012, 02:13 PM

29. Parliament

This way we have a vote of no confidence and national referendums.

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Response to randome (Reply #11)

Mon Dec 31, 2012, 05:17 PM

37. Who writes the laws?

Without the Constitution, and the SCOTUS interpretation of it, Alabama would have the 10 Commandments in the Court House.
Prayer in school would still be a requirement, Roe V Wade would not be in existence, and on and on and on........
We may also have complete gun control (or no guns), and other liberal laws which you may like, but what about the ones you don't like.

The Constitution does have two provisions for changing it, the Amendment process, and a new Constitutional Convention. They were deliberately made difficult to do, but not impossible. Start there........

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:47 PM

13. The US is becoming a failed state thanks to GOPer obstruction

The Constitution is overrated.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 12:51 PM

16. So (to take one example) schools should only be desegregated "out of respect, not obligation"?

And police should only obtain search warrants before breaking into and searching your house "out of respect, not obligation"?

And it should only be "out of respect, not obligation" that prayer cannot be required in public schools?

Sorry, I think we need an "obligation" to enforce these things. That is a really stupid article.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 01:58 PM

23. Amen to this! I read this with great enjoyment this morning and I couldn't agree more.

We need to get the document updated, remove the ludicrous 2nd amendment and write in more protections/rights for women, just for starters...

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Response to CTyankee (Reply #23)

Mon Dec 31, 2012, 10:37 PM

45. We have a process to update the Constitution, what's stopping us?

Let's just do it. Well, unless there's not enough people that want to do it. Then it's just a matter of educating the people. We can do that, right? Like Occupy Wall Street.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 02:08 PM

27. Just because he's a Georgetown Law prof doesn't make him right.

Hell, it doesn't even make him rational. And for the record, I think he's dead wrong.

Bake

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Response to Bake (Reply #27)

Mon Dec 31, 2012, 02:19 PM

31. No, but it makes him learned on the subject

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Response to Bake (Reply #27)

Mon Dec 31, 2012, 04:44 PM

34. What's the old line?

 

You have to have gone to college to say something that stupid...

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Response to Bake (Reply #27)

Mon Dec 31, 2012, 04:47 PM

36. I have a feeling that if the police broke into his house at night without a warrant,

seized his stuff, and roughed him over, while telling him that they were choosing to disregard the Fourth Amendment to the Constitution, that his viewpoint might change significantly.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 08:38 PM

39. Bloody time!!!

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 08:40 PM

40. I agree 100%: The US Constitution needs to be abolished in its present form

 

What we MUST do is to retain the progressive, individual rights aspects of the constitution, remove the unnecessary elements such as the alcohol amendments (counterweight), slavery amendments (obsolete and redundant), consolidate the federal government officeholder elements, and finally, introduce items such as mandatory environmental statutes, anti-corporate statutes, taxation and wealth limitation statutes, and finally, an ability to easily adapt itself into a global constitution that can be a part of other countries' self-governing documents. To this end, why the hell do we need to follow the edict of old white slave owners? The constitution should be a living, breathing document that caters to our progressive movement while denying the capitalist, repressive agenda of the republicanistas.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 10:18 PM

42. What an idiot...

We should continue to follow those requirements out of respect, not obligation.


Society is nothing without laws. Many people, unless forced, will not just respect my right to Freedom of speech and religion, etc...

This is a ridiculous notion.

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Response to AlinPA (Original post)

Mon Dec 31, 2012, 10:37 PM

44. It's not just the Constitution.

Anybody who believes in representative government would never allow gerrymandering, which amounts to defeating representative government by rigging the game in one's own favor. People who would do this don't care if there is a Constitution or what it might say or anything else--they're always going to look for a way to rig it to serve themselves.

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