The "Constitution Restoration Act"

[shanek]

This Constitutional Restoraction Act is just plain stupid. It is defeating the purpose of the ammendment process in the first place. What's the use of having an ammendment process if we're going to just reset everything and make all of the ammendments null and void?

How does it do that?

 

[shanek]

I wonder what 1787 common law tradition would say about intellectual property rights in the internet era?

Nothing. But we have other laws for that.

Setting up some landmark past date as a totem is an attempt to prevent further evolution, mutation, growth.

I don't know how many times I can explain it: there are no restrictions given on domestic laws. The restriction is on foreign laws, and the only exception is British common law up to 1787. Why do you keep ignoring this point?

 

[thaiboxerken]

How does it do that?

The very act of striking all ammendments null and void makes the ammendment process insignificant. Several hundred years of hard work, legislation, debate and evolution of the constitution will be wiped clean.

 

[drkitten]

The very act of striking all ammendments null and void makes the ammendment process insignificant.

How does it strike amendments null and void?

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

By definition, the Constitution of the United States is not a constitution of a foreign state or international organization.

 

[TragicMonkey]

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

It's a lengthy sentence. I find it ambiguous. The "of any foreign state..." is key: is that referring to the entire comma'ed list starting with "constitution, law...", or is it only modifying "any other action"? Grammatically, the former seems more likely....but this is legalese. It should be made a lot clearer. The small-c constitution could be referring to state constitutions, and the "judicial decisions" and "Executive order" sound distinctly American to me, seeing how the whole point of this bill is to prevent American judicial decisions from overturning laws.

I have to say I distrust government enough already, even when bills aren't worded obscurely. This is the 21st century: why not use bullet points?

 

[drkitten]

It's a lengthy sentence. I find it ambiguous.

A lawyer wouldn't; the phrasing, although appalling from any normal person's perspective, is fairly standard legalese for "any from column A combined with any from column B."

 

[TragicMonkey]

A lawyer wouldn't; the phrasing, although appalling from any normal person's perspective, is fairly standard legalese for "any from column A combined with any from column B."

I also have an inherent distrust of lawyers. The laws all seem to be written in a manner designed to keep that profession well supplied in fine suits and fancy cars!

 

[thaiboxerken]

How does it strike amendments null and void?

Isn't the first part of this Act to restore the Constitution to a previous version that doesn't have any ammendments added to it after the time in question?

 

[shanek]

The very act of striking all ammendments null and void makes the ammendment process insignificant.

Again, I ask you, how does it do that?

 

[shanek]

It's a lengthy sentence. I find it ambiguous.

Really? I find the grammar perfect and clear:

"In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States."

The court may not rely on any:

constitution
law
administrative rule
Executive order
directive
policy
judicial decision
or any other action

of:

any foreign state or international organization or agency

other than:

English constitutional and common law up to the time of the adoption of the Constitution of the United States.

So, no constitution of any foreign state..., no law of any foreign state..., no administrative rule of any foreign state..., etc., the only exception being English constitutional and common law up to the time of the adoption of the Constitution of the United States.

I don't see how it could be more clear.

The "of any foreign state..." is key: is that referring to the entire comma'ed list starting with "constitution, law...",

Of course it is!

or is it only modifying "any other action"?

This is linguistically ignorant. By saying "any other action of any foreign state," you are stating that the other actions listed are actions of any foreign state. Otherwise, it would have said, "or any action of any foreign state," no use of the word "other."

 

[shanek]

Isn't the first part of this Act to restore the Constitution to a previous version that doesn't have any ammendments added to it after the time in question?

How could it be?

 

[TragicMonkey]

This is linguistically ignorant. By saying "any other action of any foreign state," you are stating that the other actions listed are actions of any foreign state. Otherwise, it would have said, "or any action of any foreign state," no use of the word "other."

Or it could be meant to mean "any other action of a foreign state", where the "any other" is meant to incorporate the list of constitution, law, etc. plus an unnamed catchall "other" that was unspecified on the list. So the list would be a,b,c,d domestic, and a,b,c,d,e and other foreign.

As I said above, I think the more likely interpretation is the one you hold. However, I still think there's enough ambiguity to supply wiggle room, which could give rise to much irritation if not outright disaster. A clearer wording would be on the safe side. Why the hell not? No reason to run the risk.

For another example of how wording affects politics, how about that "for the purpose of maintaining a well-regulated militia" business? That seems to be causing a few headaches and legal wrangling still.

 

[thaiboxerken]

Oops, I'm wrong. I was thinking about the goal of the constitutional recoverists and not the actual act itself.

 

[UserGoogol]

new drkitten said stuff:
A lawyer wouldn't; the phrasing, although appalling from any normal person's perspective, is fairly standard legalese for "any from column A combined with any from column B."

Someone really should invent an artificial language to replace "legalese." English is simply not specific enough to be used for legal purposes. Or at least require that every law come with a parse tree indicating what nouns each adjective refers to and so forth.

Shanek said stuff:
Because the Constitution was based on [common law.]

Although I suppose you must be right, how can the Constitution be "the supreme law of the land" if it is itself dependent on common law?

 

[crimresearch]

How does it strike amendments null and void?
By definition, the Constitution of the United States is not a constitution of a foreign state or international organization.

It is if you have just made the qualification that only English common law is acceptable...America (and it's Constitutional amendments) sure looks like a 'foreign state' in that light.


And if anyone thinks there isn't someone out there who will seriously argue that, then they haven't been paying attention.

 

[Ladewig]

shanek
I see. My thing is, with the Alabama situation, it was paid for with taxpayer money and displayed in a room that belonged to the taxpayers. It's a different thing, IMO, with the judge who had it stitched to his robe, as my understanding is it's his personal robe and he personally paid for the stitching. The latter should be allowed; the former shouldn't.

Do you have a citation for the 5000-pound monument being paid for by taxpayers? Irregardless, the version that started it all was a wooden plaque that Judge Moore paid for and hung in his courtroom. Moore has gone on record saying that the purpose of each of the displays was to acknowledge of God as the sovereign source of moral law, which is almost word for word what the bill says. There can be no doubt that the sponsors of this bill are trying to do an end run around the first amendment.

shanek
If that's the case, then the law itself is unconstitutional and the judicial can strike it down. As I've said, the guys who are putting it forward aren't exactly known for their dedication to the Constitution.

Well, the courts would certainly be able to hear the case under Article III. So again, if that's the case, it would just make the law unconstitutional anyway. Which, again, isn't surprising.

I am surprised in your faith that an unconstitutional law will be struck down. Especially now that the majority party in the legislature and the executive branch have in recent weeks showed their total disregard for the Constitution. The president's brother considered using force to prevent a much-reviewed judicial ruling from being carried out.

 

[shanek]

Or it could be meant to mean "any other action of a foreign state", where the "any other" is meant to incorporate the list of constitution, law, etc. plus an unnamed catchall "other" that was unspecified on the list. So the list would be a,b,c,d domestic, and a,b,c,d,e and other foreign.

There's absolutely no way the sentence can be read to include domestic anything. It's a, b, c, d, e, and other foreign. Period. If it had, it would have simply said "any" instead of "any other." That's what the word "other" means.

For another example of how wording affects politics, how about that "for the purpose of maintaining a well-regulated militia" business? That seems to be causing a few headaches and legal wrangling still.

Except that it doesn't say "for the purpose of" anything. The "well-regulated militia" clause cannot be read by any reasonable person to pose any kind of limitation on the second clause, especialy when you consider the lack of the enumeration of any sort of power to do so, and that the Bill of Rights consists of "declaratory and restrictive clauses." That's exactly what Hamilton warned us about in Federalist #84. It's not an honest reading; it's an excuse.

 

[shanek]

Although I suppose you must be right, how can the Constitution be "the supreme law of the land" if it is itself dependent on common law?

It's not dependent on common law. It's based on it. Anything in the Constitution supercedes common law.

 

[drkitten]

Although I suppose you must be right, how can the Constitution be "the supreme law of the land" if it is itself dependent on common law?

Because the Constitution itself may require interpretation, and the interpretation of the Constitution is done against the standards of English common law.

As a simple example, let's look at a clause picked more or less at random. Article I, section 10, clause 1.

"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

What is a "letter of Marque and Reprisal"? What is an "ex post facto Law"? A "Bill of Attainder"?

These terms all had standard definitions under English common law in 1787, and of course most of the framers of the Constitution were trained in English common law and knew what these terms meant. But these terms are still matters of litigation today -- there was, for example, substantial discussion about whether or not Terry Shiavo's law was constitutional. (From Findlaw, "Secondly the bill is in effect, if not technically, a Bill of Atainder, specifically prohibited by the Constitution. Although I am unfamiliar with the vagaries of what exactly a Bill of Atainder is I haven't been offered a good explanation by the media." From the same discussion: "Art. 1 Sec. [10] also mentions "ex post facto" too though. "Ex post facto" is "after the fact", right? It seems as if Congress is trying to make a "do-over" based on what has transpired that they don't like. Does this bill transgress "ex post facto" in any way?"

Without knowing what "bill of Attainder" means (which requires an inspection of English common law), there's no way to answer these questions.

 

[shanek]

Do you have a citation for the 5000-pound monument being paid for by taxpayers?

Even if it's not, it's on taxpayers' property. Whereas the judge ownes his robe, as I understand it.

Moore has gone on record saying that the purpose of each of the displays was to acknowledge of God as the sovereign source of moral law, which is almost word for word what the bill says.

Well, he can do that, on his own or in his own courtroom. But he has no business extending that to the rest of the government or the taxpayers.

I am surprised in your faith that an unconstitutional law will be struck down.

When did I express such a faith? But with the horribly unconstitutional atrocities the Supreme Court has upheld of late, this seems like small potatoes to me.