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DanielButrymowiczFirstPaper 11 - 23 May 2008 - Main.DanielButrymowicz
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< | REVISION IN PROGRESS | >
> | Ready for grading. | | | Maintaining the Constitution Creed
-- By DanielButrymowicz - 12 Feb 2008 | |
<
< | I. Introduction | >
> | Introduction | | | Thurman Arnold argues that constitutions are “fundamental creeds” in contemporary society (27). They “furnish the limits beyond which controversy may not extend” (28). The current political climate in the United States corroborates Arnold’s observation. The Constitution does indeed frame the boundaries of social and political controversies. This essay’s goal is to illustrate the mechanism through which the United States Constitution stabilizes political conflicts. By channeling the energy of competing factions into a competition for the mantle of “constitutionality,” the Constitution creed prevents criticism of the governmental structure itself. | |
<
< | II. The Mantle of Constitutionality | >
> | The Mantle of Constitutionality | | | | |
<
< | As Arnold observes, internal inconsistencies are inevitable in any organization. The beauty of the Constitution is that it can be read to support almost any position. It is therefore “elastic” enough to allow opposing viewpoints to make use of it simultaneously (Arnold 29). Divisions over whether individual issues are constitutional ultimately unify the participants by highlighting their shared belief in the Constitution itself. In this way, battles for the mantle of constitutionality use the population’s ideological inconsistencies to unify, rather than divide, the country. | >
> | As Arnold observes, internal inconsistencies are inevitable in any organization. The beauty of the U.S. Constitution is that it can usually be read to support almost any position. It is therefore “elastic” enough to allow opposing viewpoints to make use of it simultaneously (Arnold 29). Divisions over whether individual issues are constitutional ultimately unify the participants by highlighting their shared belief in the Constitution itself. In this way, battles for the mantle of constitutionality use the population’s ideological inconsistencies to unify, rather than divide, the country. | | | | |
<
< | In America, the main battleground for constitutional conflicts is the Supreme Court. The first step in most ideological conflicts is litigation; the two sides attempt to show the Court that their position is more consistent with the Constitution than their opponents. However, when a litigant loses before the Court, rather than accept that his approach is incompatible with the Constitution, he typically adopts the opinion that the Court was mistaken. The blame is placed on “activist” or “politically motivated” judges rather than on a flaw in the Constitution itself. | >
> | In America, the main battleground for constitutional conflicts is the Supreme Court. The first step in most ideological conflicts is litigation: the two sides attempt to show the Court that their position is more consistent with the Constitution than their opponents'. However, when a litigant loses before the Court, rather than accept that his approach is incompatible with the Constitution, he typically adopts the opinion that the Court was mistaken. The blame is placed on “activist” or “politically motivated” judges rather than on a flaw in the Constitution itself. | | | | |
<
< | The Constitution creed further stabilizes the country in the face of ideological conflicts by encouraging defeated litigants to channel their anger into the political process. Since the losing side believes that judicial incompetence or insincerity was the root of its failure, the next logical step is to make sure only “good” judges are appointed in the future. | >
> | When litigation fails, the Constitution creed further promotes stability by encouraging defeated litigants to channel their anger into the political process. Since the losing side believes that judicial incompetence or insincerity was the root of its failure, the next logical step is to make sure only “good” judges are appointed in the future. The result is a redirection of potentially destructive energy into civic participation, which implicitly affirms the value of the existing governmental structure. | | | | |
<
< | The Constitution creed preserves the stability of the country as a whole by channeling ideological conflicts into competitions for the mantle of constitutionality. It does so first by providing concerned parties with the option of litigation. When this fails, ideological interests are then channeled into the political process. In this way, the creed re-directs energy from conflicts that are potentially divisive into a framework that reaffirms the value of the Constitution and of the existing governmental structure. There is no need for the involved parties to ever consider that the Constitution or governmental structure itself is the issue. | >
> | The Constitution creed preserves the stability of the country as a whole by channeling ideological conflicts into competitions for the mantle of constitutionality. It does so first by providing concerned parties with the option of litigation. When this fails, ideological interests are then channeled into the political process. In this way, the creed re-directs energy from conflicts that are potentially divisive into a framework that reaffirms the value of the Constitution and of the existing governmental structure. There is no need for the involved parties to ever consider that the Constitution or governmental structure itself is problematic. If these parties instead rejected the existing governmental structure it would pose a serious threat to the country's unity. | | | | |
<
< | III. An Illustration: The Abortion Controversy | >
> | An Illustration: The Abortion Controversy | | | | |
<
< | Perhaps the most visible example of a contemporary ideological conflict that has been channeled into the constitutional framework is the controversy surrounding Roe v. Wade and the constitutional right to an abortion. Abortion is an issue that, for the last several decades, has consistently elicited strong and often emotional opinions in Americans. Some opponents of legalized abortion equate it to murder and feel a strong moral duty to prevent it. Proponents of abortion rights, on the other hand, may view an abortion ban as gender discrimination. Because it stirs up such powerful emotions, abortion is an issue that could pose a serious threat to the country’s stability. Instead, the conflict has been channeled into the framework of the Constitution creed where it ultimately increases stability. | >
> | Perhaps the most visible example of a contemporary ideological conflict that has been channeled into the constitutional framework is the controversy surrounding Roe v. Wade and the constitutional right to an abortion. Abortion is an issue that, for the last several decades, has consistently elicited strong and often emotional opinions in Americans. Some opponents of legalized abortion equate it to murder and feel a strong moral duty to prevent it. Proponents of abortion rights, on the other hand, may view an abortion ban as gender discrimination. Because it stirs up such powerful emotions, abortion is an issue that could pose a serious threat to the country’s stability. Instead, the conflict has been channeled into the framework of the Constitution creed where it ultimately increases stability by reaffirming both sides' belief in the sanctity of the Constitution and the legitimacy of the current governmental structure. | | | | |
<
< | The two contrasting views on the constitutionality of abortion are exactly those that Arnold describes when illustrating how the Constitution can be used to support opposing sides of an issue. Supporters of Roe v. Wade agree with the majority in that case that a fundamental “right to privacy” exists that is expansive enough to cover abortion. This view is essentially the same as the adherence to the “spirit” of the Constitution Arnold describes. By contrast, abortion opponents insist that a strict textual reading of the Constitution (which of course contains no specific mention of abortion) is the only correct approach. | >
> | The two contrasting views on the constitutionality of abortion are exactly those that Arnold describes when illustrating how the Constitution can be used to support opposing sides of an issue (29). Supporters of Roe v. Wade agree with the majority in that case that a fundamental “right to privacy” exists that is expansive enough to cover abortion. This view is essentially the same as the adherence to the “spirit” of the Constitution Arnold describes. By contrast, abortion opponents insist that a strict textual reading of the Constitution (which of course contains no specific mention of abortion) is the only correct approach. | | | | |
<
< | The evolution of the abortion controversy illustrates the mechanism through which ideological conflicts are channeled into the Constitution creed framework. First, abortion opponents attempted to re-litigate the issue. A series of challenges to abortion bans and restrictions have followed Roe (Webster, Casey, Sternberg, etc), and have had some success in limiting abortion rights. More visibly, the intense emotions surrounding this issue have been channeled into the political process. Pro-life and pro-choice groups concentrate most of their efforts in support of politicians they believe will appoint judges who support their position. | >
> | The evolution of the abortion controversy illustrates the mechanism through which ideological conflicts are channeled into the Constitution creed framework. First, abortion opponents attempted to re-litigate the issue. A series of challenges to abortion bans and restrictions have followed Roe (Webster, Casey, Sternberg, etc), and have had some success in limiting abortion rights. Second, the intense emotions surrounding this issue have been channeled into the political process. Pro-life and pro-choice groups concentrate most of their efforts promoting politicians they believe will appoint judges who support their position. | | | | |
<
< | The abortion controversy could have presented a significant threat to national unity because of the strong and incompatible opinions it elicits. Since it has been subsumed into the Constitution creed, however, abortion has instead been a significant driver for increased civic participation. It has increased rather than decreased interest in the political process and support for the overall governmental structure of the United States. | >
> | The abortion controversy could have presented a significant threat to national unity because of the strong and incompatible opinions it elicits. Since it has been subsumed into the Constitution creed, however, abortion has instead been a significant driver for civic participation. It has increased rather than decreased interest in the political process and support for the overall governmental structure of the United States. In this counter-intuitive manner, it has been a unifying, rather than divisive, force. | | | | |
<
< | IV. Conclusion | >
> | Conclusion | | | | |
<
< | Thurman Arnold is correct in observing that the Constitution sets the boundaries of debate in American society. It is a vital and fundamental creed that protects the overall unity of society. The purpose of this analysis is to illustrate the mechanism through which the Constitution creed channels the inevitable internal inconsistencies in American culture into a forum that preserves, rather than threatens, social unity. The battle for the constitutional battle increases civic awareness and participation. It also prevents the result that would be truly damaging to the country: a rejection of government or constitutional legitimacy in its entirety. | >
> | Thurman Arnold is correct in observing that the Constitution sets the boundaries of debate in American society. It is a vital and fundamental creed that protects the overall unity of the country. The purpose of this analysis is to illustrate the mechanism through which the Constitution creed channels the inevitable internal inconsistencies in American culture into a forum that preserves, rather than threatens, social unity. The battle for the constitutional mantle increases civic awareness and participation. It also prevents the result that would be truly damaging to the country: a rejection of government or constitutional legitimacy in its entirety. | | |
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DanielButrymowiczFirstPaper 10 - 23 May 2008 - Main.DanielButrymowicz
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< | | >
> | REVISION IN PROGRESS | | | Maintaining the Constitution Creed | | | I. Introduction | |
<
< | To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force.
- I don't see any benefit to bringing Frank in here. What did it get you besides name-dropping?
II. The Constitution Creed
a. The Constitution is a Fundamental American Creed
The United States Constitution is a central creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears" (27). In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend" (28). The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, yet they strongly believe that the Constitution supports their position. Implicit in this belief is a conviction that the Constitution is the ultimate test of legitimacy for political action.
III. The Constitutionality Problem
a. Constitutionality Creates a Fundamental Problem
The political centrality of Constitutional law highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the Constitution. Therefore, when we enact a new law our society must determine if it is constitutional. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the Second Amendment or whether women are guaranteed a right to abortion. We have no observable or empirical way of determining whether most contemporary laws are in keeping with the wisdom of our forefathers. This difficulty is akin to the fundamental problem Jerome Frank identifies in the criminal system (the inability to determine guilt from innocence). In both instances, we employ legal magic to draw a connection we are unable to form through empirically observable techniques.
b. The Supreme Court Provides a Magic Solution to This Problem
The legal magic society uses to determine constitutionality is vested in the Supreme Court. The Court invokes doctrine, precedent, and legal reasoning in much the same way that primitive man appealed to divine or elemental forces. None of these techniques are likely to reveal the Constitution’s position on an issue. It likely has no provision for most of the controversies that arise in 21st century America.
The Supreme Court employs a number of ritualistic elements to reinforce its magical stature and conceal the fundamental problem of constitutional ambiguity. The members are called “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments begin with the ritualized chant of “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed.
IV. The Sleight of Hand
a. Opposing Factions Seek the Creed’s Approval
Due to the public and political nature of Supreme Court decisions, “thinking men” (to use another of Arnold’s terms) are expected to evaluate the Court’s decision to determine whether the magic was applied correctly. In present-day America, there are two predominant types of thinking men: the thinking Democrat and the thinking Republican. These competing standards of reasonableness represent two opposing sub-creeds. They disagree on various specific political and social points, but both take a predominantly conservative approach to maintaining the status quo. Both seek the aid of constitutional magic to affirm that their sub-creed, rather than their opponents’, is in keeping with the all-important constitutional creed.
b. This Internal Conflict Reaffirms the Overall Creed | >
> | Thurman Arnold argues that constitutions are “fundamental creeds” in contemporary society (27). They “furnish the limits beyond which controversy may not extend” (28). The current political climate in the United States corroborates Arnold’s observation. The Constitution does indeed frame the boundaries of social and political controversies. This essay’s goal is to illustrate the mechanism through which the United States Constitution stabilizes political conflicts. By channeling the energy of competing factions into a competition for the mantle of “constitutionality,” the Constitution creed prevents criticism of the governmental structure itself. | | | | |
<
< | The battle for constitutionality ultimately serves to increase the stability of American society by reaffirming the overall creed. In a given case, one side’s views will be validated and one’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect and unconstitutional. This faction will blame the demagogues on the Court who failed to apply the magic correctly. Both of these reactions take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity of their agendas. | >
> | II. The Mantle of Constitutionality | | | | |
<
< | The conflict between ideological factions is a sleight of hand that distracts the organization from examining the creed itself. There is no discussion about whether it makes sense to base our political decisions around a document that might never have been intended to apply to 21st century problems. These ideological skirmishes reaffirm the boundaries of the argument, and the Constitution creed remains unchallenged. | >
> | As Arnold observes, internal inconsistencies are inevitable in any organization. The beauty of the Constitution is that it can be read to support almost any position. It is therefore “elastic” enough to allow opposing viewpoints to make use of it simultaneously (Arnold 29). Divisions over whether individual issues are constitutional ultimately unify the participants by highlighting their shared belief in the Constitution itself. In this way, battles for the mantle of constitutionality use the population’s ideological inconsistencies to unify, rather than divide, the country. | | | | |
<
< | V. Conclusion | >
> | In America, the main battleground for constitutional conflicts is the Supreme Court. The first step in most ideological conflicts is litigation; the two sides attempt to show the Court that their position is more consistent with the Constitution than their opponents. However, when a litigant loses before the Court, rather than accept that his approach is incompatible with the Constitution, he typically adopts the opinion that the Court was mistaken. The blame is placed on “activist” or “politically motivated” judges rather than on a flaw in the Constitution itself. | | | | |
<
< | As Arnold observes, internal inconsistencies are inevitable in any organization. They are an essential part of its stability. The constitutionality issue is one example of the mechanism through which internal conflicts reinforce an organization’s broader identity. The strength of the constitutional creed, Arnold notes, is that it is “capable of being used in this way on both sides of any question,” which allows it to belong to the entire organization, despite internal differences (29). The struggle for constitutional magic reaffirms the value of that magic and stabilizes the creed. | >
> | The Constitution creed further stabilizes the country in the face of ideological conflicts by encouraging defeated litigants to channel their anger into the political process. Since the losing side believes that judicial incompetence or insincerity was the root of its failure, the next logical step is to make sure only “good” judges are appointed in the future. | | | | |
>
> | The Constitution creed preserves the stability of the country as a whole by channeling ideological conflicts into competitions for the mantle of constitutionality. It does so first by providing concerned parties with the option of litigation. When this fails, ideological interests are then channeled into the political process. In this way, the creed re-directs energy from conflicts that are potentially divisive into a framework that reaffirms the value of the Constitution and of the existing governmental structure. There is no need for the involved parties to ever consider that the Constitution or governmental structure itself is the issue. | | | | |
>
> | III. An Illustration: The Abortion Controversy | | | | |
<
< |
- The primary problem here, from my point of view, is that you do the easy work at too great length, including some unnecessary twisting of the sources to create a closer correspondence to your view of contemporary reality, without doing any of the hard work at all. Someone who has read Arnold is likely to see the obvious connection to constitutional law as a creed: Arnold hits the reader over the head with the point. To make something new out of the Arnoldian cliche requires actually reading some constitutional dialog to show in a more nuanced way how this "creed" holds some organization together. That's not apparent from the rather "red/blue" tone of the discussion here, which does not actually refer to any particular use of constitutional law to increase organizational coherence. Instead, you seem almost entirely devoted to not demonstrating that constitutional law successfully performs its function: your last sentence even misstates the purpose altogether.
| >
> | Perhaps the most visible example of a contemporary ideological conflict that has been channeled into the constitutional framework is the controversy surrounding Roe v. Wade and the constitutional right to an abortion. Abortion is an issue that, for the last several decades, has consistently elicited strong and often emotional opinions in Americans. Some opponents of legalized abortion equate it to murder and feel a strong moral duty to prevent it. Proponents of abortion rights, on the other hand, may view an abortion ban as gender discrimination. Because it stirs up such powerful emotions, abortion is an issue that could pose a serious threat to the country’s stability. Instead, the conflict has been channeled into the framework of the Constitution creed where it ultimately increases stability. | | | | |
>
> | The two contrasting views on the constitutionality of abortion are exactly those that Arnold describes when illustrating how the Constitution can be used to support opposing sides of an issue. Supporters of Roe v. Wade agree with the majority in that case that a fundamental “right to privacy” exists that is expansive enough to cover abortion. This view is essentially the same as the adherence to the “spirit” of the Constitution Arnold describes. By contrast, abortion opponents insist that a strict textual reading of the Constitution (which of course contains no specific mention of abortion) is the only correct approach. | | | | |
>
> | The evolution of the abortion controversy illustrates the mechanism through which ideological conflicts are channeled into the Constitution creed framework. First, abortion opponents attempted to re-litigate the issue. A series of challenges to abortion bans and restrictions have followed Roe (Webster, Casey, Sternberg, etc), and have had some success in limiting abortion rights. More visibly, the intense emotions surrounding this issue have been channeled into the political process. Pro-life and pro-choice groups concentrate most of their efforts in support of politicians they believe will appoint judges who support their position. | | | | |
>
> | The abortion controversy could have presented a significant threat to national unity because of the strong and incompatible opinions it elicits. Since it has been subsumed into the Constitution creed, however, abortion has instead been a significant driver for increased civic participation. It has increased rather than decreased interest in the political process and support for the overall governmental structure of the United States. | | | | |
>
> | IV. Conclusion | | | | |
<
< |
| >
> | Thurman Arnold is correct in observing that the Constitution sets the boundaries of debate in American society. It is a vital and fundamental creed that protects the overall unity of society. The purpose of this analysis is to illustrate the mechanism through which the Constitution creed channels the inevitable internal inconsistencies in American culture into a forum that preserves, rather than threatens, social unity. The battle for the constitutional battle increases civic awareness and participation. It also prevents the result that would be truly damaging to the country: a rejection of government or constitutional legitimacy in its entirety. | | |
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DanielButrymowiczFirstPaper 9 - 22 Mar 2008 - Main.EbenMoglen
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| | | To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force. | |
>
> |
- I don't see any benefit to bringing Frank in here. What did it get you besides name-dropping?
| | | II. The Constitution Creed | | | | |
>
> |
- The primary problem here, from my point of view, is that you do the easy work at too great length, including some unnecessary twisting of the sources to create a closer correspondence to your view of contemporary reality, without doing any of the hard work at all. Someone who has read Arnold is likely to see the obvious connection to constitutional law as a creed: Arnold hits the reader over the head with the point. To make something new out of the Arnoldian cliche requires actually reading some constitutional dialog to show in a more nuanced way how this "creed" holds some organization together. That's not apparent from the rather "red/blue" tone of the discussion here, which does not actually refer to any particular use of constitutional law to increase organizational coherence. Instead, you seem almost entirely devoted to not demonstrating that constitutional law successfully performs its function: your last sentence even misstates the purpose altogether.
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DanielButrymowiczFirstPaper 5 - 14 Feb 2008 - Main.DanielButrymowicz
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | >
> | | | | Maintaining the Constitution Creed | | | I. Introduction | |
<
< | To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force. | >
> | To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force. | | |
II. The Constitution Creed
a. The Constitution is a Fundamental American Creed | |
<
< | The United States Constitution is an central creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears" (27). In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend" (28). The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, yet they strongly believe that the Constitution supports their position. Implicit in this belief is a conviction that the Constitution is the ultimate test of legitimacy for political action. | >
> | The United States Constitution is a central creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears" (27). In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend" (28). The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, yet they strongly believe that the Constitution supports their position. Implicit in this belief is a conviction that the Constitution is the ultimate test of legitimacy for political action. | | |
III. The Constitutionality Problem
a. Constitutionality Creates a Fundamental Problem | |
<
< | The political centrality of Constitutional law highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the Constitution. Therefore, when we enact a new law our society must determine if it is constitutional. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the first amendment or whether women are guaranteed a right to abortion. We have no observable or empirical way of determining whether most contemporary laws are in keeping with the wisdom of our forefathers. This difficulty is akin to the fundamental problem Jerome Frank identifies in the criminal system (the inability to determine guilt from innocence). In both instances, we employ legal magic to draw a connection we are unable to form through empirically observable techniques. | >
> | The political centrality of Constitutional law highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the Constitution. Therefore, when we enact a new law our society must determine if it is constitutional. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the Second Amendment or whether women are guaranteed a right to abortion. We have no observable or empirical way of determining whether most contemporary laws are in keeping with the wisdom of our forefathers. This difficulty is akin to the fundamental problem Jerome Frank identifies in the criminal system (the inability to determine guilt from innocence). In both instances, we employ legal magic to draw a connection we are unable to form through empirically observable techniques. | | | b. The Supreme Court Provides a Magic Solution to This Problem
The legal magic society uses to determine constitutionality is vested in the Supreme Court. The Court invokes doctrine, precedent, and legal reasoning in much the same way that primitive man appealed to divine or elemental forces. None of these techniques are likely to reveal the Constitution’s position on an issue. It likely has no provision for most of the controversies that arise in 21st century America. | |
<
< | The Supreme Court employs a number of ritualistic elements to reinforce its magical stature and conceal the fundamental problem of constitutional ambiguity. The members are called “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments begin with the ritualized chant of “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed. | >
> | The Supreme Court employs a number of ritualistic elements to reinforce its magical stature and conceal the fundamental problem of constitutional ambiguity. The members are called “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments begin with the ritualized chant of “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed. | | | IV. The Sleight of Hand | | | b. This Internal Conflict Reaffirms the Overall Creed
The battle for constitutionality ultimately serves to increase the stability of American society by reaffirming the overall creed. In a given case, one side’s views will be validated and one’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect and unconstitutional. This faction will blame the demagogues on the Court who failed to apply the magic correctly. Both of these reactions take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity of their agendas. | |
<
< | The conflict between ideological factions is a sleight of hand that distracts the organization from examining the creed itself. There is no discussion about whether it makes sense to base our political decisions around a document that could never have been intended to apply to 21st century problems. These ideological skirmishes reaffirm the boundaries of the argument, and the Constitution creed remains unchallenged. | >
> | The conflict between ideological factions is a sleight of hand that distracts the organization from examining the creed itself. There is no discussion about whether it makes sense to base our political decisions around a document that might never have been intended to apply to 21st century problems. These ideological skirmishes reaffirm the boundaries of the argument, and the Constitution creed remains unchallenged. | | | V. Conclusion | | |
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<
< | You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | | | | |
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< | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, DanielButrymowicz | | | | |
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< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | | | \ No newline at end of file | |
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DanielButrymowiczFirstPaper 4 - 14 Feb 2008 - Main.DanielButrymowicz
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
<
< | Constitution as Judicial Creed | >
> | Maintaining the Constitution Creed | | | -- By DanielButrymowicz - 12 Feb 2008 | |
>
> | I. Introduction | | | | |
>
> | To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force. | | | | |
<
< | Draft II, Still too long: | | | | |
<
< | The Constitution is a fundamental creed in American society. It determines what is and is not politically acceptable. However, the society lacks objectively observable techniques for determining the constitution’s position on current issues. This ambiguity creates a fundamental problem akin to the inability to determine guilt. As in the latter case, this problem is solved through the application of legal magic. Such issues are sent to the Supreme Court, which determines whether actions are constitutionally permissible. Competing social factions perpetually vie for the mantel of constitutionality and develop strong opinions about whether the Court is correctly applying the magic. These conflicts implicitly affirm that a valid form of legal magic exists, even if it was not applied, and stabilize the overall framework of the constitutional creed. | >
> | II. The Constitution Creed | | | | |
<
< | I. The Constitution Creed | >
> | a. The Constitution is a Fundamental American Creed | | | | |
<
< | a. The Constitution is a Fundamental American Creed | >
> | The United States Constitution is an central creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears" (27). In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend" (28). The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, yet they strongly believe that the Constitution supports their position. Implicit in this belief is a conviction that the Constitution is the ultimate test of legitimacy for political action. | | | | |
<
< | The United States Constitution is an important creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears." In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend." The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, but they strongly believe that the constitution supports their position. Implicit in this belief is a conviction that the constitution is the ultimate test of legitimacy for political or social decisions. | >
> | III. The Constitutionality Problem | | | | |
<
< | II. The Constitutionality Problem | >
> | a. Constitutionality Creates a Fundamental Problem | | | | |
<
< |
- Constitutionality Creates a Fundamental Problem
| >
> | The political centrality of Constitutional law highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the Constitution. Therefore, when we enact a new law our society must determine if it is constitutional. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the first amendment or whether women are guaranteed a right to abortion. We have no observable or empirical way of determining whether most contemporary laws are in keeping with the wisdom of our forefathers. This difficulty is akin to the fundamental problem Jerome Frank identifies in the criminal system (the inability to determine guilt from innocence). In both instances, we employ legal magic to draw a connection we are unable to form through empirically observable techniques. | | | | |
<
< | The political centrality of the constitutionality highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the constitution. Therefore, when we enact a new law or initiate a new practice, our society must determine whether it comports with the Constitution. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the first amendment or whether women are guaranteed a right to abortion. In short, we have no observable or empirical way of determining whether most contemporary laws are constitutional. This difficulty is akin to the fundamental problem Jerome Frank identifies in criminal law: the inability to determine guilt from innocence. In both instances, we employ legal magic to draw a connection we are empirically unable to. | >
> | b. The Supreme Court Provides a Magic Solution to This Problem | | | | |
<
< | b. The Supreme Court Represents a Magic Solution to this Problem | >
> | The legal magic society uses to determine constitutionality is vested in the Supreme Court. The Court invokes doctrine, precedent, and legal reasoning in much the same way that primitive man appealed to divine or elemental forces. None of these techniques are likely to reveal the Constitution’s position on an issue. It likely has no provision for most of the controversies that arise in 21st century America.
The Supreme Court employs a number of ritualistic elements to reinforce its magical stature and conceal the fundamental problem of constitutional ambiguity. The members are called “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments begin with the ritualized chant of “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed. | | | | |
<
< | The most visible application of constitutional magic occurs in the Supreme Court. The Court has long asserted that one of its primary functions is determining whether laws are constitutional or not. It has positioned itself as the preeminent keeper of legal magic. The Court has the final say in whether the constitution supports or opposes a given policy decision. Further, the Court has frequently emphasized that its power is rooted in the constitution. It must defer to the constitution to determine whether it is even allowed to hear a case. (The fundamental problem arises even here, as is not always clear from the text what cases they can hear. Legal magic in the form of the political question doctrine or standing must be employed to divine what the constitution says on the matter). The court reinforces the constitutionality creed by insisting that they are bound by the Constitution and must interpret it within that framework. One might say that "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally."
The Supreme Court employs a number of ritualistic elements to reinforce its magical stature. The nine wise elder are named “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments at the Court are similarly ritualized. They begin with the chant “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed. | >
> | IV. The Sleight of Hand | | | | |
<
< | II. The Sleight of Hand | >
> | a. Opposing Factions Seek the Creed’s Approval | | | | |
<
< |
- Opposing Factions Seek the Creed’s Approval
| >
> | Due to the public and political nature of Supreme Court decisions, “thinking men” (to use another of Arnold’s terms) are expected to evaluate the Court’s decision to determine whether the magic was applied correctly. In present-day America, there are two predominant types of thinking men: the thinking Democrat and the thinking Republican. These competing standards of reasonableness represent two opposing sub-creeds. They disagree on various specific political and social points, but both take a predominantly conservative approach to maintaining the status quo. Both seek the aid of constitutional magic to affirm that their sub-creed, rather than their opponents’, is in keeping with the all-important constitutional creed. | | | | |
<
< | Due to the public and political nature of Supreme Court decisions, “thinking men” are expected to evaluate the Court’s decision to determine whether the magic was applied correctly. In present-day America, there are two main types of thinking men: the thinking democrat and the thinking republican. This is an oversimplification, but it describes a general trend. These two standards of reasonableness have become two competing sub-creeds that disagree on relatively minor political and social points while both taking a predominantly conservative approach to maintaining the status quo. Both seek the aid of constitutional magic to affirm that their sub-creed is in keeping with the deeply imbedded constitutional creed. | >
> | b. This Internal Conflict Reaffirms the Overall Creed | | | | |
<
< | b. This Internal Conflict Reaffirms the Overall Creed | >
> | The battle for constitutionality ultimately serves to increase the stability of American society by reaffirming the overall creed. In a given case, one side’s views will be validated and one’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect and unconstitutional. This faction will blame the demagogues on the Court who failed to apply the magic correctly. Both of these reactions take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity of their agendas.
The conflict between ideological factions is a sleight of hand that distracts the organization from examining the creed itself. There is no discussion about whether it makes sense to base our political decisions around a document that could never have been intended to apply to 21st century problems. These ideological skirmishes reaffirm the boundaries of the argument, and the Constitution creed remains unchallenged. | | | | |
<
< | The battle for constitutionality ultimately serves to increase the stability of the organization by reaffirming the overall creed. In a given case, one side’s views will be validated and the other’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect; that the court applied the wrong magic. The decision was unconstitutional. This faction will blame the demagogues on the Court who failed to reach the conclusion that a reasonable thinking person would arrive at. Both of these approaches take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity their agendas.
The conflict between ideological factions is a sleight of hand that distracts the organization from examining the actual creed. There is no discussion about whether it makes sense to base our political decisions around a document that could never have been intended to apply to 21st century problems. The skirmishes between liberals and conservatives or textualists and realists reaffirm the boundaries of the argument. The constitution remains the core of our social and political system. | >
> | V. Conclusion | | | | |
<
< | III. Conclusion | >
> | As Arnold observes, internal inconsistencies are inevitable in any organization. They are an essential part of its stability. The constitutionality issue is one example of the mechanism through which internal conflicts reinforce an organization’s broader identity. The strength of the constitutional creed, Arnold notes, is that it is “capable of being used in this way on both sides of any question,” which allows it to belong to the entire organization, despite internal differences (29). The struggle for constitutional magic reaffirms the value of that magic and stabilizes the creed. | | | | |
<
< | As Arnold observes, internal inconsistencies are inevitable in any organization. They are an essential part of its stability. The constitutionality issue is one example of the mechanism through which internal conflicts reinforce the organization’s broader identity. It helps to confine our political battles to manageable sizes and consolidate the power of the judiciary as a means for making important policy determinations. | | | |
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DanielButrymowiczFirstPaper 3 - 14 Feb 2008 - Main.DanielButrymowicz
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| |
| META TOPICPARENT | name="FirstPaper%25" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By DanielButrymowicz - 12 Feb 2008 | |
<
< | Preliminary Notes: | | | | |
<
< | All comments are welcome. | >
> | Draft II, Still too long: | | | | |
<
< | All comments are welcome. | >
> | The Constitution is a fundamental creed in American society. It determines what is and is not politically acceptable. However, the society lacks objectively observable techniques for determining the constitution’s position on current issues. This ambiguity creates a fundamental problem akin to the inability to determine guilt. As in the latter case, this problem is solved through the application of legal magic. Such issues are sent to the Supreme Court, which determines whether actions are constitutionally permissible. Competing social factions perpetually vie for the mantel of constitutionality and develop strong opinions about whether the Court is correctly applying the magic. These conflicts implicitly affirm that a valid form of legal magic exists, even if it was not applied, and stabilize the overall framework of the constitutional creed. | | | | |
<
< | In the canonical series of cases about the political question doctrine, the Supreme Court often emphasizes that they can't hear a case unless there are "judicially manageable" and observable standards by which they can decide the issue. Similarly, they claim to be constitutionally barred from hearing a case where the issue is "textually committed" to another branch. | >
> | I. The Constitution Creed | | | | |
<
< | It seems that the justiciability doctrines could be described as: "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally." | >
> | a. The Constitution is a Fundamental American Creed | | | | |
<
< | Our legal and political obsession with "constitutionality" has all the trappings of a creed. What is or is not "constitutional" has little to do with the actual document and more to do with centuries of confused socio-political decisions by various groups of nine justices. The doctrines are complex, confusing, and often contradictory. And yet, people and groups who know nothing about constitutional law constantly assert that Roe v. Wade is unconstitutional, or that prayer in schools is unconstitutional, along with any number of issues that involve complicated questions of constitutional law. | >
> | The United States Constitution is an important creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears." In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend." The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, but they strongly believe that the constitution supports their position. Implicit in this belief is a conviction that the constitution is the ultimate test of legitimacy for political or social decisions. | | | | |
<
< | Arnold points out that, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears." In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend." | >
> | II. The Constitutionality Problem | | | | |
<
< | American culture has certainly internalized this principle. Our constitution is regarded as containing the wisdom of our forefathers (this creed's heroes). It is impermissible for any political or judicial decision to "violate" the constitution. Unfortunately, since the constitution is so often silent, it is difficult for most people (or perhaps all people) to determine exactly when it has been violated. This creates a "fundamental problem" akin to the inability to determine guilt from innocence (Frank). There is no empirical or observable way to determine if unanticipated and attenuated social situations conform to the constitution as framed by our forebears. Instead, we employ magic. | >
> |
- Constitutionality Creates a Fundamental Problem
| | | | |
<
< | Constitutional magic manifests itself most visibly in the form of the Supreme Court. In order to determine if a decision comports with our creed, we send it to nine wise elders (usually men) who are able to discern whether or not it is constitutional or unconstitutional. The entire process is a ritual. Magical/ritualistic elements permeate oral arguments. The nine "justices" (named so as to indicate that they represent an unbiased and objective ideal) wear flowing robes, have special and sacred titles (your honor), and command rituals to show respect (standing until they are seated). The court begins its sessions with a traditional ritualized chant ("Oyez, oyez, oyez..."). | >
> | The political centrality of the constitutionality highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the constitution. Therefore, when we enact a new law or initiate a new practice, our society must determine whether it comports with the Constitution. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the first amendment or whether women are guaranteed a right to abortion. In short, we have no observable or empirical way of determining whether most contemporary laws are constitutional. This difficulty is akin to the fundamental problem Jerome Frank identifies in criminal law: the inability to determine guilt from innocence. In both instances, we employ legal magic to draw a connection we are empirically unable to. | | | | |
<
< | The magic of the criminal process occurs largely out of the public eye. It is easy for the general public to believe the system is working. They generally don't watch actual criminal trials. Instead, television and movies provide a dramatized view of the criminal justice process in which the system usually catches and convicts the bad guy, or lets off the innocent guy. | >
> | b. The Supreme Court Represents a Magic Solution to this Problem | | | | |
<
< | Constitutional magic, on the other hand, occurs more publicly. Supreme Court decisions are often highly anticipated and highly publicized. Further, Supreme Court decisions frequently have direct political and/or social implications (Brown v. Board, Roe v. Wade, Bush v. Gore). These cases tend to be the central front in a conflict between competing sub-groups both attempting to use the constitutional creed. Both sides seek to claim the mantle of "constitutionality" for their political/social agenda. This leads to an interesting split after a decision has been handed down. Typically, both sides will still attempt to retain the mantle of constitutionality. The victorious party will claim that the magic has been successful and that the constitution has been correctly interpreted and applied to the present issue. The losing party will claim that the court used inappropriate magic, and insist that the case was "wrongly decided." Both of these approaches take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court as a magical mechanism for determining the validity ("constitutionality") of various movements. | >
> | The most visible application of constitutional magic occurs in the Supreme Court. The Court has long asserted that one of its primary functions is determining whether laws are constitutional or not. It has positioned itself as the preeminent keeper of legal magic. The Court has the final say in whether the constitution supports or opposes a given policy decision. Further, the Court has frequently emphasized that its power is rooted in the constitution. It must defer to the constitution to determine whether it is even allowed to hear a case. (The fundamental problem arises even here, as is not always clear from the text what cases they can hear. Legal magic in the form of the political question doctrine or standing must be employed to divine what the constitution says on the matter). The court reinforces the constitutionality creed by insisting that they are bound by the Constitution and must interpret it within that framework. One might say that "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally."
The Supreme Court employs a number of ritualistic elements to reinforce its magical stature. The nine wise elder are named “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments at the Court are similarly ritualized. They begin with the chant “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed. | | | | |
<
< | Constitutional magic is far more self-conscious than criminal magic. In criminal proceedings, the correct ritual is easy to identify. The facts of the case are applied to the law, providing a clear result. The attempts by competing ideologies and interests to claim the mantle of constitutionality has led to a self-conscious examination of the different magical approaches used and arguments over which should be applied. There is no more objective/observable reason to consider the constitution a "living document" than to decide constitutionality based solely on its text. Arguments can be made for the intent of the framers, but their intents often conflicted. | >
> | II. The Sleight of Hand | | | | |
<
< | Evidence indicates that many justices take a fundamentally functional tact with their decisions. This can be seen perhaps most clearly in so-called "structural" or "prudential" arguments (i.e. Presidential Communications must be privileged in order to give the President the necessary freedom to use his executive power). Even in those instances when the court is making policy arguments, they still feel the need to ground their arguments in the magic of "constitutionality." Perhaps, then, constitutionality has become (or is becoming) a political "fact" akin to democracy. Perhaps the judiciary has determined, as has government, that they need to continue to provide an appeal to emotion to justify their existence to the majority of people while being practical behind the scenes and making "constitutionality" fit whatever policy the believe appropriate in a given instance | >
> |
- Opposing Factions Seek the Creed’s Approval
| | | | |
>
> | Due to the public and political nature of Supreme Court decisions, “thinking men” are expected to evaluate the Court’s decision to determine whether the magic was applied correctly. In present-day America, there are two main types of thinking men: the thinking democrat and the thinking republican. This is an oversimplification, but it describes a general trend. These two standards of reasonableness have become two competing sub-creeds that disagree on relatively minor political and social points while both taking a predominantly conservative approach to maintaining the status quo. Both seek the aid of constitutional magic to affirm that their sub-creed is in keeping with the deeply imbedded constitutional creed. | | | | |
>
> | b. This Internal Conflict Reaffirms the Overall Creed | | | | |
>
> | The battle for constitutionality ultimately serves to increase the stability of the organization by reaffirming the overall creed. In a given case, one side’s views will be validated and the other’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect; that the court applied the wrong magic. The decision was unconstitutional. This faction will blame the demagogues on the Court who failed to reach the conclusion that a reasonable thinking person would arrive at. Both of these approaches take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity their agendas.
The conflict between ideological factions is a sleight of hand that distracts the organization from examining the actual creed. There is no discussion about whether it makes sense to base our political decisions around a document that could never have been intended to apply to 21st century problems. The skirmishes between liberals and conservatives or textualists and realists reaffirm the boundaries of the argument. The constitution remains the core of our social and political system. | | | | |
<
< | Section I | >
> | III. Conclusion | | | | |
<
< | Subsection A | >
> | As Arnold observes, internal inconsistencies are inevitable in any organization. They are an essential part of its stability. The constitutionality issue is one example of the mechanism through which internal conflicts reinforce the organization’s broader identity. It helps to confine our political battles to manageable sizes and consolidate the power of the judiciary as a means for making important policy determinations. | | | | |
<
< | Subsub 1 | | | | |
<
< | Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B | | |
|
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DanielButrymowiczFirstPaper 2 - 13 Feb 2008 - Main.DanielButrymowicz
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| META TOPICPARENT | name="FirstPaper%25" |
|---|
| |
<
< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | All comments are welcome. | |
>
> | All comments are welcome. | | | In the canonical series of cases about the political question doctrine, the Supreme Court often emphasizes that they can't hear a case unless there are "judicially manageable" and observable standards by which they can decide the issue. Similarly, they claim to be constitutionally barred from hearing a case where the issue is "textually committed" to another branch.
It seems that the justiciability doctrines could be described as: "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally."
Our legal and political obsession with "constitutionality" has all the trappings of a creed. What is or is not "constitutional" has little to do with the actual document and more to do with centuries of confused socio-political decisions by various groups of nine justices. The doctrines are complex, confusing, and often contradictory. And yet, people and groups who know nothing about constitutional law constantly assert that Roe v. Wade is unconstitutional, or that prayer in schools is unconstitutional, along with any number of issues that involve complicated questions of constitutional law. | |
<
< | Or perhaps the "constitution" creed has evolved past "creed" status. Perhaps it has become what Arnold describes as a
fact of the world, like democracy. There is debate about what is or is not constitutional, but essentially never about whether the constitution should be abandoned altogether. | >
> | Arnold points out that, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears." In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend."
American culture has certainly internalized this principle. Our constitution is regarded as containing the wisdom of our forefathers (this creed's heroes). It is impermissible for any political or judicial decision to "violate" the constitution. Unfortunately, since the constitution is so often silent, it is difficult for most people (or perhaps all people) to determine exactly when it has been violated. This creates a "fundamental problem" akin to the inability to determine guilt from innocence (Frank). There is no empirical or observable way to determine if unanticipated and attenuated social situations conform to the constitution as framed by our forebears. Instead, we employ magic.
Constitutional magic manifests itself most visibly in the form of the Supreme Court. In order to determine if a decision comports with our creed, we send it to nine wise elders (usually men) who are able to discern whether or not it is constitutional or unconstitutional. The entire process is a ritual. Magical/ritualistic elements permeate oral arguments. The nine "justices" (named so as to indicate that they represent an unbiased and objective ideal) wear flowing robes, have special and sacred titles (your honor), and command rituals to show respect (standing until they are seated). The court begins its sessions with a traditional ritualized chant ("Oyez, oyez, oyez...").
The magic of the criminal process occurs largely out of the public eye. It is easy for the general public to believe the system is working. They generally don't watch actual criminal trials. Instead, television and movies provide a dramatized view of the criminal justice process in which the system usually catches and convicts the bad guy, or lets off the innocent guy. | | | | |
<
< | Then there is the issue of the constitution as magic. Much has been read into the constitution over the lifetime of the country. To this day, Justices make tortured connections between the text of the document itself and modern political situations that could never have been foreseen by the framers. Does the constitution provide a right to abortion? Does the constitution prohibit the death penalty? Questions like these are not addressed in the text. So society deals with them the same way people deal with the fundamental problem of determining guilt. | >
> | Constitutional magic, on the other hand, occurs more publicly. Supreme Court decisions are often highly anticipated and highly publicized. Further, Supreme Court decisions frequently have direct political and/or social implications (Brown v. Board, Roe v. Wade, Bush v. Gore). These cases tend to be the central front in a conflict between competing sub-groups both attempting to use the constitutional creed. Both sides seek to claim the mantle of "constitutionality" for their political/social agenda. This leads to an interesting split after a decision has been handed down. Typically, both sides will still attempt to retain the mantle of constitutionality. The victorious party will claim that the magic has been successful and that the constitution has been correctly interpreted and applied to the present issue. The losing party will claim that the court used inappropriate magic, and insist that the case was "wrongly decided." Both of these approaches take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court as a magical mechanism for determining the validity ("constitutionality") of various movements. | | | | |
<
< | Since we (especially the laymen) do not appear to have discovered an observable/technical means of determining what is or is not constitutional, we rely on the magic of the Supreme Court. The idea that the Supreme Court is able to accurately determine the constitution's view on present day issues is magic. It's a ritual; a way of justifying decisions that are often made (with varying degrees of transparency) for reasons of policy or social or political preference. | >
> | Constitutional magic is far more self-conscious than criminal magic. In criminal proceedings, the correct ritual is easy to identify. The facts of the case are applied to the law, providing a clear result. The attempts by competing ideologies and interests to claim the mantle of constitutionality has led to a self-conscious examination of the different magical approaches used and arguments over which should be applied. There is no more objective/observable reason to consider the constitution a "living document" than to decide constitutionality based solely on its text. Arguments can be made for the intent of the framers, but their intents often conflicted. | | | | |
<
< | Hopefully I can distill these general thoughts into a clearer and more concise idea. Any suggestions on what to focus on would be appreciated. | >
> | Evidence indicates that many justices take a fundamentally functional tact with their decisions. This can be seen perhaps most clearly in so-called "structural" or "prudential" arguments (i.e. Presidential Communications must be privileged in order to give the President the necessary freedom to use his executive power). Even in those instances when the court is making policy arguments, they still feel the need to ground their arguments in the magic of "constitutionality." Perhaps, then, constitutionality has become (or is becoming) a political "fact" akin to democracy. Perhaps the judiciary has determined, as has government, that they need to continue to provide an appeal to emotion to justify their existence to the majority of people while being practical behind the scenes and making "constitutionality" fit whatever policy the believe appropriate in a given instance | | | |
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DanielButrymowiczFirstPaper 1 - 12 Feb 2008 - Main.DanielButrymowicz
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>
> |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Constitution as Judicial Creed
-- By DanielButrymowicz - 12 Feb 2008
Preliminary Notes:
All comments are welcome.
In the canonical series of cases about the political question doctrine, the Supreme Court often emphasizes that they can't hear a case unless there are "judicially manageable" and observable standards by which they can decide the issue. Similarly, they claim to be constitutionally barred from hearing a case where the issue is "textually committed" to another branch.
It seems that the justiciability doctrines could be described as: "The condition of the Court's thinking about a case at all is that it can be thought about constitutionally."
Our legal and political obsession with "constitutionality" has all the trappings of a creed. What is or is not "constitutional" has little to do with the actual document and more to do with centuries of confused socio-political decisions by various groups of nine justices. The doctrines are complex, confusing, and often contradictory. And yet, people and groups who know nothing about constitutional law constantly assert that Roe v. Wade is unconstitutional, or that prayer in schools is unconstitutional, along with any number of issues that involve complicated questions of constitutional law.
Or perhaps the "constitution" creed has evolved past "creed" status. Perhaps it has become what Arnold describes as a
fact of the world, like democracy. There is debate about what is or is not constitutional, but essentially never about whether the constitution should be abandoned altogether.
Then there is the issue of the constitution as magic. Much has been read into the constitution over the lifetime of the country. To this day, Justices make tortured connections between the text of the document itself and modern political situations that could never have been foreseen by the framers. Does the constitution provide a right to abortion? Does the constitution prohibit the death penalty? Questions like these are not addressed in the text. So society deals with them the same way people deal with the fundamental problem of determining guilt.
Since we (especially the laymen) do not appear to have discovered an observable/technical means of determining what is or is not constitutional, we rely on the magic of the Supreme Court. The idea that the Supreme Court is able to accurately determine the constitution's view on present day issues is magic. It's a ritual; a way of justifying decisions that are often made (with varying degrees of transparency) for reasons of policy or social or political preference.
Hopefully I can distill these general thoughts into a clearer and more concise idea. Any suggestions on what to focus on would be appreciated.
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
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