Philosophy of Constitutional Law

[RW]

I could guarantee it would end up at the Supreme Court here.  I hope we never have something that demonstrably justifies the ban.

[Anonymous]

Yes the state can say that but here it needs to be "demonstrably justified".  What demonstrably justifies the limitation?

I don't know your jurisprudence well enough to touch the question.  Whatever "demonstrably justified" means in Canada, it has no clear parallel here.  



One of the phrases we like in the States is "clear and present danger."  Lawyers love that kind of bullshit because it both sounds awesome and guarantees them lots of future work.

[RW]

Yes the state can say that but here it needs to be "demonstrably justified".  What demonstrably justifies the limitation?

I don't know your jurisprudence well enough to touch the question.  Whatever "demonstrably justified" means in Canada, it has no clear parallel here.  



One of the phrases we like in the States is "clear and present danger."  Lawyers love that kind of bullshit because it both sounds awesome and guarantees them lots of future work.

It means it requires some kind of demonstrable justification just like it says.  Law makers need to be able to offer proof to justify creating limits to freedoms.  Same with "clear and present danger".  You have to establish that said danger actually exists.  If you cannot do that in a demonstrable way, you cannot impose restrictions to freedoms.

[Anonymous]

As long as you keep using "demonstrably" to explain "demonstrably justifiable" I will remain in the dark.  I'm not trying to be difficult, I'm just unclear on what sort of demonstration is involved other than persuasion and words.  I've seen references to statistics and stuff...is that what is implied?

[RW]

As long as you keep using "demonstrably" to explain "demonstrably justifiable" I will remain in the dark.  I'm not trying to be difficult, I'm just unclear on what sort of demonstration is involved other than persuasion and words.  I've seen references to statistics and stuff...is that what is implied?

Sorry, I am being lazy with my words.



Okay, take gun laws.  You could point to tangible evidence that supports outlawing guns by providing statistics on crime and how it affects liberty and security of person, etc.  



You need to establish there is a betterment to society by imposing limits to freedoms and that these limits are reasonable in our society.

[Anonymous]

As long as you keep using "demonstrably" to explain "demonstrably justifiable" I will remain in the dark.  I'm not trying to be difficult, I'm just unclear on what sort of demonstration is involved other than persuasion and words.  I've seen references to statistics and stuff...is that what is implied?

Sorry, I am being lazy with my words.



Okay, take gun laws.  You could point to tangible evidence that supports outlawing guns by providing statistics on crime and how it affects liberty and security of person, etc.  



You need to establish there is a betterment to society by imposing limits to freedoms and that these limits are reasonable in our society.

Makes good sense.  Here, we often write bad laws -- for emotional reasons or agenda-driven reasons, and then the courts end up having to sort it out.

[RW]

As long as you keep using "demonstrably" to explain "demonstrably justifiable" I will remain in the dark.  I'm not trying to be difficult, I'm just unclear on what sort of demonstration is involved other than persuasion and words.  I've seen references to statistics and stuff...is that what is implied?

Sorry, I am being lazy with my words.



Okay, take gun laws.  You could point to tangible evidence that supports outlawing guns by providing statistics on crime and how it affects liberty and security of person, etc.  



You need to establish there is a betterment to society by imposing limits to freedoms and that these limits are reasonable in our society.

Makes good sense.  Here, we often write bad laws -- for emotional reasons or agenda-driven reasons, and then the courts end up having to sort it out.

I notice the creation of laws that are not only emotional but ones that are impossible to enforce.  I say that without being able to recall an example off hand so take it with a grain of salt.

[Anonymous]

I notice the creation of laws that are not only emotional but ones that are impossible to enforce.  I say that without being able to recall an example off hand so take it with a grain of salt.

I'll give you one historical example here in my state.  Beginning in the Reagan era, the eighties, some ten years after Roe v Wade, my state legislators passed a law that did not make abortion illegal, but saddled it with many ridiculous prerequisites that were clearly designed to limit or truncate the ability of many women to obtain an abortion.  Someone immediately put together a test case, it went through the state appellate courts to the state supreme court and the law was voided in the court's Opinion.



The next year, they passed another anti-abortion law, almost word for word but with a few changes.  Again the test case, again the legal process, the appeals, and again the supremes tossed out the new law.  



For something like five or six consecutive years, the legislature wasted money in this way.  It wasn't even the case that the group of legislators sponsoring and re-sponsoring the bills really believed in what they were doing, they happened to be from districts where the electorate was outraged over Roe v Wade and they were just unabashedly pandering to the voters in order to get re-elected.  



It didn't end until the Dems got control of a key committee which just stopped passing the new bills out of committee and let them die there.

[Anonymous]

Because we are talking about the philosophy of law.

No, his post was blatantly partisan politics.



I have moved other posts that were overtly political from the main board.

He's talking about LAW and the process of setting laws which is political.



If you want to move this thread, I have no problem with that but his post is perfectly on point per the discussion of this thread.

I read his post, I know what he's talking about..



I'm not moving his post, just giving a reminder we have a sub for that kind of post.

[RW]

I just want to point out that technically the judiciary and congress are both branches of government.  The government enacts law and the judiciary applies law.  Why laws are enacted are every bit as relevant to the discussion as the legal portion.



I have no problem with his response and I'm the author of the thread.  If something in this thread belongs in Politics then the whole thread does.

[RW]

LET'S NOT TALK ABOUT SEX BABY



In Canada, prostitution is technically legal.  You are allowed to exchange money for sex. What you are not allowed to do is talk about the exchange of money for sex in public or the view of public or impede the flow of traffic as seen here:

213. Offence in relation to prostitution



213. (1) Every person who in a public place or in any place open to public view



(a) stops or attempts to stop any motor vehicle,



(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or



(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person



for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.



Definition of "public place"



(2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

[size=85]Criminal Code of Canada[/size]

Personally, I think this is an unreasonable limit on freedom of speech.