ITT: Citizens United Get's a Devil's Advocate

[Cain]

A person is a citizen, obviously.

[Triple Zero]

Really? I figured it was trying to draw some sort of distinction along the lines of that I am a person, but not a US citizen.

This makes me wonder, did they ever translate this Bill of Rights into an actual book of law using proper legal language (the kind that uses the same word for the same thing every time and scores no points for literary style)? According to Wikipedia it still "plays a key role in American law and government" so it shouldn't be up for interpretation, like some sort of religious text, what's the use of that? Either it says a corporation is a person, or it says it's not, or it doesn't say anything on the subject, but being vague and up to interpretation about it isn't very useful.

[Cain]

No, not really.  I'm not sure exactly where I was going with that (hey, I got woken up at 2am this morning, and woke up at least once every hour since then), but I think I was trying to make a funny.

[Mesozoic Mister Nigel]

Looks more like it defines "citizen" in terms of "person". I don't see any definition of "person".

Neither do I.

[Mesozoic Mister Nigel]

No, not really.  I'm not sure exactly where I was going with that (hey, I got woken up at 2am this morning, and woke up at least once every hour since then), but I think I was trying to make a funny.

It read like a joke to me. A very, very dry joke, and also one that sent chills up my spine because I could definitely see the Right Wing running with that idea.

[Roly Poly Oly-Garch]

Looks more like it defines "citizen" in terms of "person". I don't see any definition of "person".

d'oh...yeah, it does. I did the thing I was bitching about in the process of bitching about it. I'm recursively embarrassed.

After reading the bit about corporate personhood Telarus posted in another thread, though, it doesn't look like the citizen that is a corporate person for 14th amendment purposes, either relies on or alters any definitions significantly. That is, until "this is a case where a corporation is accepted as a person as defined under the 14th Amendment" is taken to mean "the 14th Amendment says corporations are people"...but when has something like that ever happened about 4 posts ago in this very thread?   

This makes me wonder, did they ever translate this Bill of Rights into an actual book of law using proper legal language (the kind that uses the same word for the same thing every time and scores no points for literary style)? According to Wikipedia it still "plays a key role in American law and government" so it shouldn't be up for interpretation, like some sort of religious text, what's the use of that? Either it says a corporation is a person, or it says it's not, or it doesn't say anything on the subject, but being vague and up to interpretation about it isn't very useful.

Were it not for the vague wording in the articles of the Constitution that define the federal government, any vague wording in the Bill of Rights would not be near as troublesome. That's not to say that any statement, however precise, will not always be "up to interpretation" based chiefly on the reader being "up to interpret" it, but a good deal of the fuzziness of separation of powers would not exist were it not for questions like "Is xyz authority an 'implied power' of the Federal Government or a power reserved to the states or people under the 10th amendment?"

On the other hand, being vague on specifics can express an intent that is explicitly broad. The specific protected rights listed in the Bill of Rights, ideally, would just be an "in case of fire, break glass," sorta deal. When shit get's stupid and the only thing limiting the government is what it's been told it can't do, these should be the last rights to go. If you define what powers the Federal Government has explicitly, throw the rest somewhere else, and then toss in a feel-good "We <3 Liberty" clause, that would theoretically be pretty air-tight--provided everyone is on the same page. Explicit clauses, specific and exhaustive enumeration of rights, plain as fucking day troof, in the right wrong hands, though, can just as easily be an explicit, specific, and exhaustive list of points to be used in proving a case against, plain as fucking day troof.

We got military detention of U.S. Citizens from one such exercise. Though the Constitution reads:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This one case this one time ruled that having your disability benefits cut off after a hearing by the Social Security Administration, was not a decision a citizen was constitutionally guaranteed the right to appeal to a federal court.

So naturally, 1 judge found the clause in the constitution to be most applicable to a question of Habeas Corpus in a case of rebellion as the public safety may require. (His answer was declare martial law, take it to criminal court, or let the dude go).

...and 8 found the Social Security decision to be most applicable to a question of, just how much responsibility should be placed on a busy, busy branch of government, in order to consider due process sufficiently satisfied you know, for the situation? (their answer was "some, less than all, but definitely some to be sure"...true). So yeah, we can be held without what most people would think of as a "trial" but so long as some person somewhere heard something we had to say on the matter of our being held (what their response was is only sometimes relevant), we can say we got our rights.

--to be fair, the reasoning in the Social Security decision did say a lot of stuff about the Constitution and what-not...so there is that.

Also, the 2nd amendment is neither vague, nor up to interpretation, it's just fucking weird and confusing and "if the part that says something important says all there is to be said, why'd you put this other part in there that says something that we can't quite figure out how in the hell it may matter with the important part." Not cool, assholes.

--edit for maybe something near on-topic. I'd prefer a vague protection of rights that might accidentally protect that right in cases that may or may not involve actual people, or whatever, to a very precise and explicit protection of rights that is just treated as something in need of a work-around. It's all in the eye of the beholder, ultimately.

[Triple Zero]

The thing about the vagueness (that which I subjectively consider vague, apparently), which is a new thing I learned today, is actually a part of a fundamental difference between American and European continental law.

I was seriously wondering, if the Constitution and the Bill of Rights is to important to US law and government, how come it's so vague and open to interpretation? First I thought, well, maybe because it's old and written a long time ago. But then I figured, no because our books of law are pretty precise even if they're old, and if the language gets too outdated I suppose they'll be very carefully rewritten because they're like the "computer code" our legal system runs on so it needs to be unambiguous and clear. And then I realized I didn't know what the proper English word for "law book" is, anyway, so I looked it up, and then I learned.

The main point is, your laws, they aren't codified! At all! No wonder they're vague!

You got common law and statutory law. And both are equally important in the US. But common law is the vague part because it is unwritten and based on things like jurisprudence.

European continental law, also called Civil Law, is very different! I'll just copy a bit from WIkipedia here:

----
http://en.wikipedia.org/wiki/Continental_law

Civil law (or civilian law) is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions.[1][2]

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[4] It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.

----
http://en.wikipedia.org/wiki/Civil_code#Civil_codes_in_the_Americas

In the United States, codification appears to be widespread at a first glance, but U.S. legal codes are actually collections of common law rules and a variety of ad hoc statutes; that is, they do not aspire to complete logical coherence. For example, the California Civil Code largely codifies common law doctrine and is very different in form and content from all other civil codes.
----

This is so weird! I had never figured you could actually run a serious legal system without, well, you know, aspiring to complete logical coherence So I learned something today!

[Mesozoic Mister Nigel]

I'd like it if Dok weighed in on this shit, because he knows hisself some Constitution.

I am finding myself very skeptical of almost everything you have to say about it, NoLoDeMiel. I am not well enough versed in Constitutional Law to actually call out most of it, but there are enough areas of what you say that don't ring true that I have a hard time trusting your judgement on any of it.

[Doktor Howl]

I was seriously wondering, if the Constitution and the Bill of Rights is to important to US law and government, how come it's so vague and open to interpretation? First I thought, well, maybe because it's old and written a long time ago. But then I figured, no because our books of law are pretty precise even if they're old, and if the language gets too outdated I suppose they'll be very carefully rewritten because they're like the "computer code" our legal system runs on so it needs to be unambiguous and clear. And then I realized I didn't know what the proper English word for "law book" is, anyway, so I looked it up, and then I learned.

The constitution was written vaguely specifically to allow different interpretations as times changed.

I would suggest you read The Federalist Papers, for a full explanation by the guys who wrote the constitution.

[Doktor Howl]

On the other hand, being vague on specifics can express an intent that is explicitly broad. The specific protected rights listed in the Bill of Rights, ideally, would just be an "in case of fire, break glass," sorta deal. When shit get's stupid and the only thing limiting the government is what it's been told it can't do, these should be the last rights to go.

Balls.  Go back and read amendment IX.

[Doktor Howl]

Looks more like it defines "citizen" in terms of "person". I don't see any definition of "person".

Neither do I.

When the term "person" is used, it means any person in American custody or jurisdiction.  When the term "The People" is used, it means the citizenry of the United States.  For example, amendment V states that, for example, a Canadian accused of a crime in America is guaranteed a proper trial, whereas amendment II guarantees the citizen's right to keep & bear arms.

[Mesozoic Mister Nigel]

Looks more like it defines "citizen" in terms of "person". I don't see any definition of "person".

Neither do I.

When the term "person" is used, it means any person in American custody or jurisdiction.  When the term "The People" is used, it means the citizenry of the United States.  For example, amendment V states that, for example, a Canadian accused of a crime in America is guaranteed a proper trial, whereas amendment II guarantees the citizen's right to keep & bear arms.

It doesn't look like the Constitution defines "personhood". Most likely because the framers never thought that would be necessary, I'm guessing.

[Roly Poly Oly-Garch]

The thing about the vagueness (that which I subjectively consider vague, apparently), which is a new thing I learned today, is actually a part of a fundamental difference between American and European continental law.

I was seriously wondering, if the Constitution and the Bill of Rights is to important to US law and government, how come it's so vague and open to interpretation? First I thought, well, maybe because it's old and written a long time ago. But then I figured, no because our books of law are pretty precise even if they're old, and if the language gets too outdated I suppose they'll be very carefully rewritten because they're like the "computer code" our legal system runs on so it needs to be unambiguous and clear. And then I realized I didn't know what the proper English word for "law book" is, anyway, so I looked it up, and then I learned.

The main point is, your laws, they aren't codified! At all! No wonder they're vague!

You got common law and statutory law. And both are equally important in the US. But common law is the vague part because it is unwritten and based on things like jurisprudence.

European continental law, also called Civil Law, is very different! I'll just copy a bit from WIkipedia here:

----
http://en.wikipedia.org/wiki/Continental_law

Civil law (or civilian law) is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions.[1][2]

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[4] It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.

----
http://en.wikipedia.org/wiki/Civil_code#Civil_codes_in_the_Americas

In the United States, codification appears to be widespread at a first glance, but U.S. legal codes are actually collections of common law rules and a variety of ad hoc statutes; that is, they do not aspire to complete logical coherence. For example, the California Civil Code largely codifies common law doctrine and is very different in form and content from all other civil codes.
----

This is so weird! I had never figured you could actually run a serious legal system without, well, you know, aspiring to complete logical coherence So I learned something today!

hehe...you said serious.

This reminds me...I've been curious a lot lately if there are any examples of a multi-bodied high judicial out there in the great big governed world?

I ask because "Computer code" is exactly what comes to mind when I think of where U.S. law is severely wanting. We honestly don't even have a set useage for logical operators. Does "Necessary and Proper" mean all that which is Necessary and that which is Proper, or only that which is Necessary and also Proper, or "every particular power included to do a required general thing" ? Is it the superset the subset, or the other universe?

Thing is interpretation, applicability, relevance, these are all different questions, but there are so many different "valid" answers to those questions that putting all that in the hands of 9 people assembled in one court just obliterates separation of powers in any meaningful sense (except executive military power...that's, several times, proven itself separate from the other branches). Could a 3 part judiciary, consisting of a court of logic, a court of fact and a court of opinion, answer a question it wasn't asked, find the money that is the speech, the corporation that is the person, and the rights that protect a freedom from the free. I kinda doubt it...but then again, there's still this romantic "liberty and justice for all forever and ever amen" part of my poor deluded mind that kinda wants to stand up and cheer when a bunch of goofy shits in robes, Superman in and free poor confined "speech" from the oppressive grip "speaker's" have held on it. Such heroism is hardly possible in a world which consists merely of that which "exists".

Pretty much if I dig the decision I'm glad of the interprability that allowed it to be reach. If I don't like the decision it's all bullshit and needs fixed yesterday. If I'm fucking dead scared of the decision...guess that comes with the territory.

As an aside, you mentioned California law, I've looked at the 1st section of their Constitution only, it's a pretty good example of what can be done to codify what is a preferred attitude in interpretation. That is something I really dig:

(2) A statute, court rule, or other authority, including those in
effect on the effective date of this subdivision, shall be broadly
construed if it furthers the people's right of access, and narrowly
construed if it limits the right of access.  A statute, court rule,
or other authority adopted after the effective date of this
subdivision that limits the right of access shall be adopted with
findings demonstrating the interest protected by the limitation and
the need for protecting that interest.

[Roly Poly Oly-Garch]

On the other hand, being vague on specifics can express an intent that is explicitly broad. The specific protected rights listed in the Bill of Rights, ideally, would just be an "in case of fire, break glass," sorta deal. When shit get's stupid and the only thing limiting the government is what it's been told it can't do, these should be the last rights to go.

Balls.  Go back and read amendment IX.

Not seeing how this refutes my argument. If Articles 2-4 are tight, taught and real, REAL careful about limits on implied powers, the bill of rights can consist of:
1. When in doubt, yes the people can.
2. everything else is state or people. (2 prong this, confers to state and people, and very much takes away what Federal can't already claim to have)

Loose as the articles are, the bill of rights has to be more explicit in enumerating rights. Speech, press, religion, assembly, etc, etc, should be common sense in light of a locked down governmental authority, but having been given room to stretch out, it's wise to make sure there are some specifics that should never be questionable under any circumstances, but should be the last things to go when government busts it's banks and 10 little amendments on a piece of paper mean fuck-all.

I think the specifics chosen are pretty interesting, though. A little bit of what could prove helpful in any last ditch-efforts to stave off the shit-storm. A little bit of what authorities may otherwise step on just in the course of trying to get shit done. Some good old timey no quartering, and 9 and 10, which are absolutely necessary if you're going to enumerate rights in the first place...which is where I was at in the last post. The specifics were deemed wise, but what happens when you list specifics (interpretation gets narrowed) also needed to be addressed. Actually, I don't really think the bill of rights is very vague at all though, actually. Was just a general point about why vague and why explicit.

(Not that this is in any way enlightening, just answering where I was called out )

[Roly Poly Oly-Garch]

I'd like it if Dok weighed in on this shit, because he knows hisself some Constitution.

I am finding myself very skeptical of almost everything you have to say about it, NoLoDeMiel. I am not well enough versed in Constitutional Law to actually call out most of it, but there are enough areas of what you say that don't ring true that I have a hard time trusting your judgement on any of it.

If you see something that looks bullshit, hit me on it. It may well be bullshit and I got some bad info or did some bad reading, and got some bullshit stuck in my teeth. Be doing me a favor. My judgement on most of it is straight opinion. I like it, I don't like it. Seems to me, doesn't seem. My judgement is something that I refine through exercise, not something that I hold as authoritative.

If I can follow the reasoning in a decision (and there's whole areas where even the vocabulary is prohibitive to me in that regard), or trace the evolution of a law or whatever, that still doesn't mean anything beyond the fact that I see how A to B was traversed. Read one of the dissenting opinions in Citizen's United and a bit of one of the majority opinions, and you'll see just how very wildly the reasoning can vary even amongst our top dogs. There is always bullshit to call in law, my main aim is to be able to pick out what's "not the sorta bullshit one would expect in a place like this," and what's "bullshit that's hip, hot and happenin."