Legal Theory and Laws

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 1:14 pm

And even executive orders can be halted.


A Federal Court put a stop to Trump's travel ban.

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 4:42 pm

DutchessMaria wrote:"Well at a certain point any group of people no matter the belief system would be a collective identity of some kind? I mean I think logically we cannot get around that'

Do you want your right to speak your mind freely come from society and govt?

Or do you want your right to speak your mind freely come from you with the restrained put on govt on what you can say?


Yes, my point is more that I am not sure if it happens practically speaking when we get outside theory. But I did not do a good job finishing my thoughts last night.

Been a crazy day here but I'll come back tonight.

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 6:08 pm

What happened?

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 6:31 pm

Admin wrote:What happened?

A lot of hearings, trial tomorrow. One of our associate attorneys ended up getting committed to a mental hospital after a pretty severe breakdown and drug issue. So reallocating her cases last minute.

So the usual.

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 7:13 pm

laurav wrote:
Admin wrote:What happened?

A lot of hearings, trial tomorrow. One of our associate attorneys ended up getting committed to a mental hospital after a pretty severe breakdown and drug issue. So reallocating her cases last minute.

So the usual.

What are you doing to these people? Torturing them?

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 7:49 pm

To recap, I think everyone agrees that democratic constitutional governments do still employ the concept of a working sovereign (executive branch). Obviously these are limited functions including checks and balances but the sovereign executive rights still exist.

I think there is at least an argument that the executive ability to suspend traditional legal norms means even the most liberal of governments is unable to usurp a dictorial foundation in that there is still an absolutist function ingrained within the function of the executive. Bush, Obama’s, and Trump have alll crossed into widespread use of executive orders, and a totally ineffective congress had abdicated more and more power to the executive.

As far as the legs system, it remains to be seen what limits he soreme court will ultimately impose. And I also have to admit that while understandable, the fact that the supreme interpreters of what is constitutional do not agree again suggests that the most brilliant abstract and theoretical ideas may not play out in application correctly.

So that’s my first premise: that every constitutional government tends to have the pesky problem of an executive branch that can grow too powerful organically.

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 7:53 pm

In order for the law in the constitution to become effective, there needs to be an authority that decides how to apply general legal rules to concrete cases and how to deal with problems of contested interpretation or under-determination. However, the material content of the constitution does not itself determine who is to interpret and to apply it (in fact it was a Supreme Court holding early on that decided the Supreme Court was the final arbitrator in matters of interpretation and application of the constitution).  Hence, a sovereign authority (in this Case Supreme Court) is needed to decide how to apply general legal norms to particular cases.

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 8:00 pm

So the fact that a democratic constitution cannot endow a particular person with permanent executive authority does not entail that the possibility of a genuine sovereign decision on the exception (suspension of laws during an emergency) has disappeared. It merely implies that a decision on the exception in the democratic state must take the form of an exercise of the people's constituent power.

Now to go back to my point about ‘we the people,’ as I think everyone agrees from the numerous posts on here, the most basic human distinction when it comes to collective behavior is Us v. Them. Individuals may have personal enemies, but that is not a political phenomenon. Politics involves groups that face off as mutual enemies to varying degrees, and that is definitely true in our current system.

I think there is an argument that collective identities exist prior to the founding of a constitution and representative government, and this is the easiest concept because obviously a group of people got together to revolve against Britain and determine that they could form their own constitutional government. I would challenge anyone to argue they were not a political group, who had fought as died to establish a new government. A people, thus, will have an existence prior to all legal form as long as there is a sense of shared identity strong enough to motivate its members to fight and die for the preservation of the group. And as long as a people exists in this way it is capable of a pre/political originary violence that pre dates and pre supposes the constitutional government.

And as Maria has pointed out, the way we would at least theoretically maintain the constitution would be through a violent over throw should the branches of government become increasingly alienated from the realities of the people and constitutional law. (Of course more likely it would b civil strife between competing factions who have differing views on the way those groups are being represented or that the constitution is being applied non uniformly).

So there is a violent, pre constitutional origin both pre dating the founding of a constitutional government as well as recognized within the sovereign authority we give the executive to declare emergencies and suspend laws and the Supreme Court in determining to whom and how the constitution applies.

This is meant to be a critique of the functioning of constitutional democracies not a suggestion that they should be scrapped nor that there is a theoretical way that it ought to work, nor how I wish, idealize, or believe constitutional governments function. It is an analysis from one angle only.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:03 pm

I don't think there is a perfect system but with the US Constitution being the longest surviving charter, I suggest we need to think twice before we chuck it and resort to rewriting a Constitution like plenty full of other countries are doing every other decade or so.

The reason the US Constitution has survived this long is because of its brilliant check and balance system and the remedies available to correct the wrongs that the system has created. It is indeed a living document.

I would like to hear what you want to replace it with Laura and James?



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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:07 pm

Also, the Supreme Court does not go after cases. We the People bring those cases in front of the Supreme Court and only if these cases have constitutional grounds will the Supreme Court hear them. They only hear about 1-2% of cases.

As for 'violence' to overthrow the Govt. It is Govt that is to uphold and protect the Constitution and its representatives take an oath. There are other ways to remove an unconstitutional govt or individuals that violate the Constitution and their oath.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:09 pm

We also can call for a Convention of States to amend the Constitution. That power belongs to We the People.

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 9:11 pm

I’m not advocating changing the constitution. It wouldn’t solve the problem at this point, nor do I think the US constitution is a failed document. My point again goes to the inherent limitations of any form
of government.

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 9:14 pm

The Supreme Court does not go after cases, but it is the final
arbitator of constitutional law and what the constitution means when there is a question sufficient to grant Cert. And of course, constitutional law is also settled in the lower courts as well without ever reaching SCOTUS—so in fairness many minds decide what the constitution means, making it even less stable when you think about it since reasonable minds can differ.

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 9:19 pm

laurav wrote:So the fact that a democratic constitution cannot endow a particular person with permanent executive authority does not entail that the possibility of a genuine sovereign decision on the exception (suspension of laws during an emergency) has disappeared. It merely implies that a decision on the exception in the democratic state must take the form of an exercise of the people's constituent power.

Now to go back to my point about ‘we the people,’ as I think everyone agrees from the numerous posts on here, the most basic human distinction when it comes to collective behavior is Us v. Them. Individuals may have personal enemies, but that is not a political phenomenon. Politics involves groups that face off as mutual enemies to varying degrees, and that is definitely true in our current system.

I think there is an argument that collective identities exist prior to the founding of a constitution and representative government, and this is the easiest concept because obviously a group of people got together to revolve against Britain and determine that they could form their own constitutional government. I would challenge anyone to argue they were not a political group, who had fought as died to establish a new government. A people, thus, will have an existence prior to all legal form as long as there is a sense of shared identity strong enough to motivate its members to fight and die for the preservation of the group. And as long as a people exists in this way it is capable of a pre/political originary violence that pre dates and pre supposes the constitutional government.

And as Maria has pointed out, the way we would at least theoretically maintain the constitution would be through a violent over throw should the branches of government become increasingly alienated from the realities of the people and constitutional law. (Of course more likely it would b civil strife between competing factions who have differing views on the way those groups are being represented or that the constitution is being applied non uniformly).

So there is a violent, pre constitutional origin both pre dating the founding of a constitutional government as well as recognized within the sovereign authority we give the executive to declare emergencies and suspend laws and the Supreme Court in determining to whom and how the constitution applies.

This is meant to be a critique of the functioning of constitutional democracies not a suggestion that they should be scrapped nor that there is a theoretical way that it ought to work, nor how I wish, idealize, or believe constitutional governments function. It is an analysis from one angle only.

This is why all your employees and attorneys go of the deep end.

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 9:39 pm

Omg I am going to lose my mind. I did a very detailed response
To both Laura and Maria and lost it.
FML.

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 9:43 pm

Second time around, this is going to be rough. Maria you are arguing for a return to constitutional principles in government forced by the collective outcry of the people. You feel that the constitution as long as adhered to, will result in as near perfect society as possible? Does it trouble you that the constitution has never been able to and probably never will guarantee uniform application because it must be enforced through the government / people?

Does a fractured and deeply divided electorate make it less likely this country will return to constitutional principles? (And keep in mind one in 12 people roughly is illiterate).

What would the people taking responsibility for their rights look like? Like Black Lives Matters?

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 9:46 pm

Laura does it bother you that this critique you cite, which I admit has been largely acknowledged by political theorists across the spectrum as a valid critique of liberal democracies (a paradox that cannot be easily solved), originated with Nazi theorists?

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:52 pm

"Second time around, this is going to be rough. Maria you are arguing for a return to constitutional principles in government forced by the collective outcry of the people. You feel that the constitution as long as adhered to, will result in as near perfect society as possible? Does it trouble you that the constitution has never been able to and probably never will guarantee uniform application because it must be enforced through the government / people?'

Return to constitutional principles?

We have constitutional principles and the ACLU is fighting daily to keep them on the books. Not to eliminate them!


See, we have entire generations who don't understand their Constitution and the incredible set of principles it represents. It is people that are failing to comprehend the significance of their Constitution. Not the other way around. And it is people failing everywhere and that is why so many countries end up in dictatorships and have a new constitution every other decade.


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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:54 pm

"Does a fractured and deeply divided electorate make it less likely this country will return to constitutional principles? (And keep in mind one in 12 people roughly is illiterate)."

Hmm, there may be a case for an electorate after all if 1 in 12 people are illiterate.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:57 pm

"What would the people taking responsibility for their rights look like? Like Black Lives Matters?'

Understanding their Constitution and Bill of Rights first and foremost. If you look at Youtube, many citizens are challenging police which blatantly violates peoples rights left and right. Those that are successful, know what to say.

"Am I being detained?"
"What is the probable cause or reasonable suspicion?"
"Am I free to leave"

and above all, don't talk to the police. Don't say anything but these three sentences or it will be used against you! Use your right to remain silent.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 9:58 pm

And do you know the ACLU will send you a pocket Constitution?!

I wonder why if it were such an outdated document?

You don't get to vote on my inalienable rights. If you desire such, you will have to get 75% of the States together and hold a Convention of States.

That is a pretty hefty high bar. Not as in the rest of the world where it is done with the stroke of a pen.

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Re: Legal Theory and Laws

Post by Admin on Mon Oct 30, 2017 10:09 pm

I don’t think anyone has said the constitution is outdated in this exchange. That’s not the argument. That’s why I asked if you were arguing that individuals need to return to their constitutional rights more and demand them? Your inalienable rights are being taken away (or violated)  as you prefer all the time with a strong surveillance state emerging.

I am familiar with the YT videos from various immigration check points and traffic stops. Those have been around for a while, but that’s not addressing the magnitude of the issues we are facing as a country. We would need comprehensive reform. Not to mention the legal black holes we’ve created such as GITMO, executive orders out the ying yang because Congress is completely inept at best.


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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 10:16 pm

The UK has no free speech. The Netherlands don't have real free speech. Many European countries don't have the degree of freedom of expression the US has.

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Re: Legal Theory and Laws

Post by DutchessMaria on Mon Oct 30, 2017 10:17 pm

Congress is basically this two party system. People need to check out of the two party system. This two party system voted for the Patriot Act.

I think we need to do away with party affiliation and allegiance to party line.

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Re: Legal Theory and Laws

Post by laurav on Mon Oct 30, 2017 10:20 pm

It’s important individuals know the basic 4th 5th, and 6th amendment rights (Australia, UK, New Zealand, Canada, Germany, Netherlands, France and more do have similar rights). Most people do I think understand the 5th and 6th at least. But majority of my criminal clients run their mouths when they get arrested or consent (but incrediby low standard for vehicle searches anyway)..people never shut up..... another example of where human nature takes over.

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