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Constructivist

 
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jabailo



Joined: 20 Mar 2006
Posts: 1273
Location: Kent (East Hill), WA

PostPosted: Mon Dec 11, 2006 12:26 am    Post subject: Constructivist Reply with quote

I watched a movie called Jesus Son which I enjoyed until I looked up some reviews that referred to it as another movie about "good looking junkies". I guess they were lumping Buffalo 66 in there.

There film seemed to be set in an early 70s post-hippie era. I thought it did a good job of capturing the grunginess and also lives lived without a lot of money or stuff. It really is amazing how little money and jobs there were back then...at least as I remember it. For instance, way before the malls took over or even the suburban big department stores, the closest thing would be a local drugstore that might stock radios, casette players, electronic games. But even these were...sparse. Not Iron Curtain store sparse, but, really almost along those lines.

Money for many people was tight and valuable. Quarters were good to purchase significant stuff, like milk. There just wasn't enough money in circulation for people to have good stuff.

...

There is one scene where the couple go to get an abortion. There are anti-abortion activists outside the clinic. This didn't seem exactly right as I remember anti-abortion protests that came much later as in the 1980s. Especially, since this scene was set in Chicago, I wouldn't imagine that there would be protesters at that early stage.

So, after seeing this movie and doing some web browsing I thought: I wonder what the Supreme Court is up to regarding abortion, since there was a big flurry of news and then none for a long time.

Along the way I read the term strict constructivist. I wondered what that means? A guy working on girders who beats his kids? I look up the word Constructivist by itself and the results leads me into metaphysics land. And also a reference to AI pioneer Seymour Papert saying that it was a hypothesis that children learn best by experimenting and doing.

Researching that meaning will keep me busy this week, but I wanted to know about strict constructivists in the judicial sense of the word. Of course, WikiPaedia supplied me with a terse article and a short definition:

Quote:
The underlying argument behind strict constructionism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Supporters interpret this position as judging based on what the law is, not what it should be.

http://en.wikipedia.org/wiki/Strict_constructionism


I really want to be for that, and I truly believe that is all judges should do.
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brian-hansen
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PostPosted: Mon Dec 18, 2006 7:02 pm    Post subject: Reply with quote

I haven't checked Wikipedia on this, but I'd say they should've given a bit more detail. In particular, strict constructivist is generally used to denote a judicial attitude toward the constitution and the framers.

My view is that this attitude is worthy as a goal, but is not always workable or desirable. For one thing, it is not always possible to determine the intent behind a law or item in the bill of rights. Secondly, circumstances may have progressed to the point where, the framers of the law/constitution could not have anticipated the current situation. Of course, they tried, and for the most part did a remarkably good job, but they did not have perfect foresight.

-Brian
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jabailo



Joined: 20 Mar 2006
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Location: Kent (East Hill), WA

PostPosted: Mon Dec 18, 2006 11:42 pm    Post subject: Reply with quote

We might agree that trying to fit a law to each new situation is complex, and that is the work of judges. We might disagree with the idea that given that the law cannot be exactly applied, how far can a judge go in "filling in the blanks", especially where there is little that actually applies to the situation.

In fact, I think that judges should be given the option to rule "Not Enough Law", and force the legislature to make decisions where laws are inadequate or unclear.

This may remove the ability to have a "speedy trial", but I see it being more applicable in the big civil cases that the higher courts hear that are usually not that speedy to begin with.
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brian-hansen
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PostPosted: Wed Dec 20, 2006 9:56 am    Post subject: Reply with quote

Not a bad idea, but I suspect we both reveal our ignorance
of the language and actual working of the judiciary. I hear,
occasionally, of judges sending instructions back to the legislature
(recent example, New Jersey civil unions), and there is most
likely a latin term for multiple variations on this theme.

It seems to me, though, that the problem that faces judges
more often than "not enough law", is the problem of "too much
law". The problem is more often overconstrained, rather than
underconstrained, and the work of the judge is to prioritize
and weigh conflicting laws (and their underlying principles
and intentions) to arrive at what is just.

-Brian
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jabailo



Joined: 20 Mar 2006
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Location: Kent (East Hill), WA

PostPosted: Wed Dec 20, 2006 10:51 am    Post subject: Reply with quote

brian-hansen wrote:
It seems to me, though, that the problem that faces judges more often than "not enough law", is the problem of "too much
law".


In that case, where two laws are shown to regulate contradictory advice, the judge should also have powers to send to the legislature a request to make the laws consistent.

Yes, there is also common law, where the judge's decision becomes the tiebreaker; however, I like the idea of feedback mechanisms so that legislature is not let off the hook. They, and the populace, should be setting clear rules by which judges can make decision. The judge then applies the rule. At the point that the judge has to make the rules, the system has failed.
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brian-hansen
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PostPosted: Wed Dec 27, 2006 12:51 pm    Post subject: Reply with quote

I find you taking a path that I had not expected. For me, the message of conflicting laws was 2-fold: 1) removing obsolete laws, and 2) that the ultimate problem of conflicting laws is part of the landscape of America, and that it is the job of the judges to wade through these.

It seems to me that there will always be conflicts in the law. Does the state law hold in this case, or the federal one? The city law, or the state? The law regulating commerce, or the one regulating free speech? I don't think we can expect lawmakers to solve this problem.

Returning for a moment to constructivism, I bring up the subject of gay rights. It is doubtful, it seems to me, that we would find any of the
signers of the constitution / bill of rights who defended gay rights. And there were laws against it then and after, I presume. But they talked about citizens, being secure in their possessions, having rights to liberty and the pursuit of happiness. Of course, this is not the only conflict in the rhetoric of the founding of the US. Still, I am happy that the SCOTUS has found something in the constitution that leaves the freedom for gays to wiggle their waggle wherever they choose, modulo consent, et al.

Fact is, the constitution allows for more freedom than is currently allowed, witness (I think) the 9th (or is it 10th) amendment: powers not listed are reserved by the states and the people.

In any case, your idea is fairly good, but pretty much naive (by that I mean, essentially ignorant) of the practice that is already in place. We need wise judges, and it would be a mistake to think that we could automate their function in this government.

-Brian
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