Tuesday, 22 July 2008

Bill of Rights? I scoff in your badly drafted face

I hate constitutional law.

No, I love constitutional law. Ethics, principles, right and wrong and all that. Helping people and making society a better place. Good stuff.

I hate AMERICAN constitutional law. Because it is stupid. Really, it is.

The gradual, so called 'protection' and 'rights' that have been developed haven't been done in any principled way, which is what I expected of a country with a written constitution. I'm used to things like the ECHR which says you know - Right to life, in section (er...it's been a while) blah blah, and lo and behold there you will find the right to life, and close by all the other rights, sitting quietly together and eating croissants (they're european init?).

Where will you find rights protected in the Constitution? Under the Privileges and Immunities of Citizenship clause? Not really, that store is all but empty apart from a few dusty right to travel issues. Maybe under the Equal protection clause? Kinda, except only against the local government, not against the big, federal government.

No, you'll find civil rights protection since about 1960...so, er, all of it (what little there is, but that's just me being snarky) under the Commerce Clause. Yes, the commerce clause. It's like the Supreme Court and congress and academics have sat and thought 'Hmm where's a good place to put this that I'll remember easily, that makes sense?' and then shoved it in any old nook and cranny, like a wayward teenager cleaning his room by just shoving everything under the bed.

Or a senile aunt putting the phone in the freezer and not remembering until she goes to defrost a chicken. And also finds the cat there. American constitutional law is as logical as the mind of a senile old biddy.

It's doing this senile biddy's nut in! Maybe I can plead the 5th in my exam - now, that's either the right to not incriminate myself by (filling in wrong answers), or the requirement that everyone sing the national anthem, hand on heart at ballgames. There's no way to know which...


Android said...

This all sounds really confusing. :o When wre they going to change it?

Good luck to you, Mel!

Law Minx said...

A HAH!! so a written constitution is capable of bieng just as much of a nightmare as an unwritten one!! Lets hear it for constitutional law ( which I rather liked when I studied it even if, in retrospect, repeated exposure to the concept of "Legal Wales" (D'oh. Imaginative Name, no?) comprehensively did my head in!!
I beg to differ with you as regards ECHR rights - some of them are a bit more bolshie than others - the right to a fair trial and freedom of expression like nothing better than a damned good punchup; poor old right to protection of life in law, and the prohibtions on slavery and torture on the other hand sit quietly weeping in the corner since no one accords them the respect they deserve.....

Legal Lass said...

I thought a written constitution would be much more logical... Nice to know that its just as badly organised as ours!!


Mel said...

Ta Android, I'm going with rote learning now, not trying to understand anything!

The constitution is an old document, and trying to make it up to date requires a lot of intellectual and verbal gymnastics. The original drafters, esteemed as they were, weren't exactly thinking about a woman's fundamental right to an abortion, or whether or not positive discrimination could be justified.

They were all male, well-off slave drivers whose only concerns were freedom from the British and things like being 'forced to quarter soldiers in their houses'. The constitution was written for a specific purpose, and times have changed a lot since then.

Course, there is a method for changing the constitution - by amendment, but I don't think that's been done for a long time. Maybe since Prohibition. It requires a 2/3 vote of the Senate - which is a high threshold, but then if you make it any lower people can just graffiti all over the constitution!

So when the Supreme Court talks about the legislative intent of the drafters..it's all rubbish! They intended slavery, the death penalty...etc etc.

Most of my info I'm getting from Wikipedia at the moment actually! Which is a bit shameful, but the books I have all refer to things in terms of 'the Dormant Commerce Clause' or the 'privileges and immunities clause' etc etc, and as such presume a certain level of familiarity with all this stuff. Which I don't have.

Whereas good old Wikipedia presumes idiocy from its readers - good-o!

Minxy, tis true tis true - there just doesn't seem to be a good way to do it, is there? Any model seems open to abuse.