Subject:
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Re: "The Constitution is what the judges say it is"
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Mon, 15 Oct 2001 20:54:03 GMT
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Viewed:
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317 times
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Scott writes:
> It does not sound all that great when you describe it like that?
Well, that's human history for you then. It's not the case that your
country has anything better to offer, I know. It's trial and error, and so
on...sometimes justice doesn't come quickly, or even at all.
The Constitution is NOT what the judges say it is. That's only accurate in
part. There are many other factors at play in this equation. You have
managed to point out that the system in the U.S. is fallible and that there
can be slippage in the meaning of specific language. Those are good, if
obvious, points that do nothing to deride the inherent value of the U.S.
system of law.
All I can respond to the issues of fallibility and slippages in language is
that this is precisely what you learn in first year Contracts at law school.
Contracts, even social contracts, are subject to misunderstandings and
miscommunications -- yet at the heart of each contract is an attempt to have
a "meeting of the minds" at to what precisely the parties were trying to
achieve. Hashing out those meanings is not necessarily an easy matter. All
we can hope for is to reach a happy balance between common understandings of
what things mean and an appropriate amount of wordiness in an attempt to
cover for risk planning/management.
[BTW, I got all of my knowledge of the subject from the leader of the Clan
MacNeil Association of America, Ian R. MacNeil, who was my professor in
first year Contracts at Northwestern University School of Law. MacNeil is
THE authority on the subject of the Relational Theory of Contract. For more
on him see: http://macneilgroup.com/moreclan.htm and
http://www.northwestern.edu/univ-relations/media/news-releases/1998-99/*events/contsymp-events.html]
So, the U.S. system may not be that great -- but what do you offer in
exchange for it? Every system is fallible to one degree or another.
Perhaps what makes any system worth keeping is its ability to bend in the
direction of righting wrongs. And by wrong I only mean that which deprives
anyone of a substantive right. By this measure, the U.S. system seems very
adequate to me in many respects. I'd rather tinker with it slightly than do
away with it altogether. The core of our laws, the U.S. Constitution, has
only a few passages I'd prefer to have removed from the document -- and most
of these have to do with the various statuses of natural persons. Overall,
it's a rather brilliantly written document that is poorly understood in the
same way the Bible is misunderstood -- we'd get far fewer disputes on the
matter if people would just read the damned thing!
In the end, the U.S. Constution is actually what we all say it is. And I'm
willing to stick with that rule of law, thanks!
-- Hop-Frog
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