Philosophy of Constitutional Law

[Renee]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

Sorry, my point was that our Charter is designed to stay relevant. That's what Section 1 does.  It affords us that flexibility.



Okay, we need to protect citizens.  How does not allowing women in Canada to wear the burka accomplish that?

The burqha is by its very definition an article of disguise.



There is NO reasonable justification for its use. It serves no purpose other than to conceal the identity of its wearer.



It is unlawful.

If I might...let's explore this " article of disguise" and it's unlawfulness.



Do you think anything that disguises the identity of the wearer should be considered "unlawful"?



If so, what about the wearing of a Halloween costume? Should that be considered "unlawful"? Does it not disguise the identify of the wearer?

I don't know if that's a good analogy..



Children going door to door on a set day each year asking for candy is different than walking into a bank in April wearing a disguise.

The age of the individual and frequency of use of said disguise is irrelevant.



The crux of the matter is it's unlawfulness based on the inability to identify the wearer.

[Anonymous]

But Renee, on Halloween I expect children wearing disguises coming to my house and it puts a smile on my face..



If someone walks into a Shell station at eleven pm wearing a mask, the store clerk's heart probably starts racing

[Zetsu]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

Sorry, my point was that our Charter is designed to stay relevant. That's what Section 1 does.  It affords us that flexibility.



Okay, we need to protect citizens.  How does not allowing women in Canada to wear the burka accomplish that?

The burqha is by its very definition an article of disguise.



There is NO reasonable justification for its use. It serves no purpose other than to conceal the identity of its wearer.



It is unlawful.

If I might...let's explore this " article of disguise" and it's unlawfulness.



Do you think anything that disguises the identity of the wearer should be considered "unlawful"?



If so, what about the wearing of a Halloween costume? Should that be considered "unlawful"? Does it not disguise the identify of the wearer?

I don't know if that's a good analogy..



Children going door to door on a set day each year asking for candy is different than walking into a bank in April wearing a disguise.

The age of the individual and frequency of use of said disguise is irrelevant.



The crux of the matter is it's unlawfulness based on the inability to identify the wearer.

But even if age is irrelevant, Halloween is only limited to one day, kinda like how fireworks are only allowed on Victoria or a national day.  Plｕｓ　Ｉ　ｂｅｌｉｅｖｅ　 there has been cases where a burka was considered as a obstruction of justice where male terrorists disguise themselves in one to flee from the crime scene　ｗｈｅｎ　ｔｈｅ　ｐｏｌｉｃｅ　ａｒｒｉｖｅｄ．

[Zetsu]

ｇａｈ，　ｓｔｕｐｉｄ　ｆｏｎｔｓ　ｍｅｓｓｅｄ　ｕｐ　ｗｉｔｈ　ｍｙ　ｃｈｉｎｅｓｅ　ｃｈａｒａｃｔｅｒ　ｔｅｘｔ　ｐｒｏｇｒａｍ　ｏｎ　ｍｙ　ｗｏｒｋ　ｐｃ，　ｌｏｌ．

[Anonymous]

ｇａｈ，　ｓｔｕｐｉｄ　ｆｏｎｔｓ　ｍｅｓｓｅｄ　ｕｐ　ｗｉｔｈ　ｍｙ　ｃｈｉｎｅｓｅ　ｃｈａｒａｃｔｅｒ　ｔｅｘｔ　ｐｒｏｇｒａｍ　ｏｎ　ｍｙ　ｗｏｒｋ　ｐｃ，　ｌｏｌ．

It happens Zetsu.

 ac_smile

[Zetsu]

ｇａｈ，　ｓｔｕｐｉｄ　ｆｏｎｔｓ　ｍｅｓｓｅｄ　ｕｐ　ｗｉｔｈ　ｍｙ　ｃｈｉｎｅｓｅ　ｃｈａｒａｃｔｅｒ　ｔｅｘｔ　ｐｒｏｇｒａｍ　ｏｎ　ｍｙ　ｗｏｒｋ　ｐｃ，　ｌｏｌ．

It happens Zetsu.

 ac_smile

 :001_tongue:

[Renee]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

Sorry, my point was that our Charter is designed to stay relevant. That's what Section 1 does.  It affords us that flexibility.



Okay, we need to protect citizens.  How does not allowing women in Canada to wear the burka accomplish that?

The burqha is by its very definition an article of disguise.



There is NO reasonable justification for its use. It serves no purpose other than to conceal the identity of its wearer.



It is unlawful.

If I might...let's explore this " article of disguise" and it's unlawfulness.



Do you think anything that disguises the identity of the wearer should be considered "unlawful"?



If so, what about the wearing of a Halloween costume? Should that be considered "unlawful"? Does it not disguise the identify of the wearer?

I don't know if that's a good analogy..



Children going door to door on a set day each year asking for candy is different than walking into a bank in April wearing a disguise.

The age of the individual and frequency of use of said disguise is irrelevant.



The crux of the matter is it's unlawfulness based on the inability to identify the wearer.

But even if age is irrelevant, Halloween is only limited to one day, kinda like how fireworks are only allowed on Victoria or a national day.  Plｕｓ　Ｉ　ｂｅｌｉｅｖｅ　 there has been cases where a burka was considered as a obstruction of justice where male terrorists disguise themselves in one to flee from the crime scene　ｗｈｅｎ　ｔｈｅ　ｐｏｌｉｃｅ　ａｒｒｉｖｅｄ．

Again, the frequency of the wearing of said disguise is not the issue.



A statement was made claiming that an "article of disguise" is "unlawful". Does that statement apply to ALL "articles of disguise" or are we attempting to single out a religious garment by using a prejudiced POV?



Example....it's Halloween night, a group of adolescents enter a convenience store in costume to pick up some junk food for a party. They are unrecognizable. There are cameras in place around the store and in this case, facial recognition is not possible. The teens purchase a few items and then leave......Did they break the law in any way?

[Zetsu]

It never ceases to amaze me that whilst the world around us changes, becomes more dangerous, more turbulent and less peaceful, humankind, especially the variety that lives in free and open democracies, believe that a "constitution" or "charter" is so sacrosanct that to change it would be akin to making an alteration to E= MC2.



These charters were drawn up in different times, in a different world, and for different reasons.



The world is at war, and your enemy wears a garment that conceals them from identification as they walk amongst us.



Other countries have banned the burqha, without concern over anachronistic bullshit motherhood statements. So should ours. And yours.

Our Charter was written in 1982. That's hardly "a different world".  It's also designed, as shown in our first Charter right, to have our rights, including freedom of religion, limited as DEMONSTRABLY JUSTIFIED in a free and democratic society.  That doesn't mean we do what other countries do.  That means we have to satisfy our society when it comes to impositions on our people.



So what's the justification?

1982.



35 years ago.



In the interim, we have witnessed 2 wars in Iraq, the dissolution of the Soviet Union, the rise of China as the dominant economy, the invention of the smart phone, internet, and drones. We have experienced terrorism under the banner of islam at an unprecedented rate, and the rise of islamic extremism to levels where its practitioners occupy entire countries.



But no...let's stick to our "kumbaya" charters that have no relevance to the modern world.



Islam in its many forms has declared war on the west. The West has a responsibility to protect its citizens, not some fanciful piece of warm and fuzzy ideology enshrined in a worthless piece of paper.



Tell me, would you stroll the streets of Tehran, Kabul, Damascus or Baghdad in your shorts and tank top?

Sorry, my point was that our Charter is designed to stay relevant. That's what Section 1 does.  It affords us that flexibility.



Okay, we need to protect citizens.  How does not allowing women in Canada to wear the burka accomplish that?

The burqha is by its very definition an article of disguise.



There is NO reasonable justification for its use. It serves no purpose other than to conceal the identity of its wearer.



It is unlawful.

If I might...let's explore this " article of disguise" and it's unlawfulness.



Do you think anything that disguises the identity of the wearer should be considered "unlawful"?



If so, what about the wearing of a Halloween costume? Should that be considered "unlawful"? Does it not disguise the identify of the wearer?

I don't know if that's a good analogy..



Children going door to door on a set day each year asking for candy is different than walking into a bank in April wearing a disguise.

The age of the individual and frequency of use of said disguise is irrelevant.



The crux of the matter is it's unlawfulness based on the inability to identify the wearer.

But even if age is irrelevant, Halloween is only limited to one day, kinda like how fireworks are only allowed on Victoria or a national day.  Plｕｓ　Ｉ　ｂｅｌｉｅｖｅ　 there has been cases where a burka was considered as a obstruction of justice where male terrorists disguise themselves in one to flee from the crime scene　ｗｈｅｎ　ｔｈｅ　ｐｏｌｉｃｅ　ａｒｒｉｖｅｄ．

Again, the frequency of the wearing of said disguise is not the issue.



A statement was made claiming that an "article of disguise" is unlawful. Does that statement apply to ALL "articles of disguise" or are we attempting to single out a religious garment by using a prejudiced POV?



Example....it's Halloween night, a group of adolescents enter a convenience store in costume, unrecognizable. There are cameras in place around the store and in this case facial recognition is not possible. The teens purchase a few items and then leave......Did they break the law in anyway?

I think it's ok if it's on Halloween night, kinda like making fireworks only legal on the national day.  Then they should either ban all disguise or at least on private property, or make it legal on Halloween night, duno lol.  The problem with Islam is there's some part of it is so messed up I can start to find some resemblance with some devil worshipping cult that are strictly illegal.  ac_unsure

[Anonymous]

Again, the frequency of the wearing of said disguise is not the issue.



A statement was made claiming that an "article of disguise" is unlawful. Does that statement apply to ALL "articles of disguise" or are we attempting to single out a religious garment by using a prejudiced POV?

I don't subscribe to the statement itself since it's too general.  I don't think all disguise is necessarily unlawful, nor should it be.  But instead of trying to be "lawyerly" or split hairs, I'll just say what I believe.



First, the burqa is by its very function a disguise (just as a halloween mask is.)



Second, if disguise in public were to be criminalized without singling out the burqa, and the law met the test of promoting the general welfare, that law would probably be legally sound.



Third, local law enforcement would probably be selective in enforcing such a law on carefully considered occasions such as Halloween, and no one would mind.  Such exceptions could even be written into our hypothetical law without weakening it.



Fourth, I don't even think it would be out of line to write a law SINGLING OUT the burqa and saying that the public welfare and security can easily be endangered by its use...and therefore, we can't afford to allow it worn in public EVEN THOUGH a claim is made that such wearing has a religious basis.  



Here in the states, "congress shall make no law respecting an establishment of religion, [size=150]or prohibiting the free exercise thereof.[/size]"  If the US wanted to outlaw the burqa, it could still do so by finding a way to remove the burqa from a religious context.  One obvious way would be to note that in some cases, wearing and detonating an explosive vest or belt is an expression of religion also...but it's not a protected act BECAUSE it endangers the lives and safety of others.



Although not clearly enumerated in our Bill of Rights, there is a principle well established in case law that holds that my right to extend my arm in a crowd and swing it back and forth ends at your nose.

In other words, public safety trumps the "free" exercise of even specifically delineated rights.

[Renee]

Again, the frequency of the wearing of said disguise is not the issue.



A statement was made claiming that an "article of disguise" is unlawful. Does that statement apply to ALL "articles of disguise" or are we attempting to single out a religious garment by using a prejudiced POV?

I don't subscribe to the statement itself since it's too general.  I don't think all disguise is necessarily unlawful, nor should it be.  But instead of trying to be "lawyerly" or split hairs, I'll just say what I believe.



First, the burqa is by its very function a disguise (just as a halloween mask is.)



Second, if disguise in public were to be criminalized without singling out the burqa, and the law met the test of promoting the general welfare, that law would probably be legally sound.



Third, local law enforcement would probably be selective in enforcing such a law on carefully considered occasions such as Halloween, and no one would mind.  Such exceptions could even be written into our hypothetical law without weakening it.



Fourth, I don't even think it would be out of line to write a law SINGLING OUT the burqa and saying that the public welfare and security can easily be endangered by its use...and therefore, we can't afford to allow it worn in public EVEN THOUGH a claim is made that such wearing has a religious basis.  



Here in the states, "congress shall make no law respecting an establishment of religion, [size=150]or prohibiting the free exercise thereof.[/size]"  If the US wanted to outlaw the burqa, it could still do so by finding a way to remove the burqa from a religious context.  One obvious way would be to note that in some cases, wearing and detonating an explosive vest or belt is an expression of religion also...but it's not a protected act BECAUSE it endangers the lives and safety of others.



Although not clearly enumerated in our Bill of Rights, there is a principle well established in case law that holds that my right to extend my arm in a crowd and swing it back and forth ends at your nose.

In other words, public safety trumps the "free" exercise of even specifically delineated rights.

Okay, I agree with everything you just said BUT for the explosive vest thing. There are a lot of different articles of clothing that can hide explosive devices or weapons that have no religious affiliation.



Where does that qualification of being a danger to the welfare of the general public begin and end?



In one of my previous posts in this thread, I stated that any legislation banning something like a burka, will require reasonable proof of the statistical probably that it is a danger to the public.



Now, millions of women across the globe wear these God damn black bags and so far it seems that a very, very small percentage are packing exploding underwear. Given that, where would we find the basis that says a burka is any more dangerous to the public than the average trench coat?



The basis would have to come from the religious affiliation of the wearer and that brings us right back to the quandary of barring an article of clothing based on religious prejudices.

[RW]

I just want to clarify that most laws around disguise outlaw the use of disguise for criminal purposes soon other words, it's illegal to disguise yourself to commit or while committing a crime.   That's not the purpose of a burka generally.  It's an article of virtue.



Can a burqa be used during a crime to conceal a criminal?  Yes.  But so can a hat, a scarf, a robe, a dress, a trench coat - none of those things are outlawed.

[RW]

Again, the frequency of the wearing of said disguise is not the issue.



A statement was made claiming that an "article of disguise" is unlawful. Does that statement apply to ALL "articles of disguise" or are we attempting to single out a religious garment by using a prejudiced POV?

I don't subscribe to the statement itself since it's too general.  I don't think all disguise is necessarily unlawful, nor should it be.  But instead of trying to be "lawyerly" or split hairs, I'll just say what I believe.



First, the burqa is by its very function a disguise (just as a halloween mask is.)



Second, if disguise in public were to be criminalized without singling out the burqa, and the law met the test of promoting the general welfare, that law would probably be legally sound.



Third, local law enforcement would probably be selective in enforcing such a law on carefully considered occasions such as Halloween, and no one would mind.  Such exceptions could even be written into our hypothetical law without weakening it.



Fourth, I don't even think it would be out of line to write a law SINGLING OUT the burqa and saying that the public welfare and security can easily be endangered by its use...and therefore, we can't afford to allow it worn in public EVEN THOUGH a claim is made that such wearing has a religious basis.  



Here in the states, "congress shall make no law respecting an establishment of religion, [size=150]or prohibiting the free exercise thereof.[/size]"  If the US wanted to outlaw the burqa, it could still do so by finding a way to remove the burqa from a religious context.  One obvious way would be to note that in some cases, wearing and detonating an explosive vest or belt is an expression of religion also...but it's not a protected act BECAUSE it endangers the lives and safety of others.



Although not clearly enumerated in our Bill of Rights, there is a principle well established in case law that holds that my right to extend my arm in a crowd and swing it back and forth ends at your nose.

In other words, public safety trumps the "free" exercise of even specifically delineated rights.

Okay, I agree with everything you just said BUT for the explosive vest thing. There are a lot of different articles of clothing that can hide explosive devices or weapons that have no religious affiliation.



Where does that qualification of being a danger to the welfare of the general public begin and end?



In one of my previous posts in this thread, I stated that any legislation banning something like a burka, will require reasonable proof of the statistical probably that it is a danger to the public.



Now, millions of women across the globe wear these God damn black bags and so far it seems that a very, very small percentage are packing exploding underwear. Given that, where would we find the basis that says a burka is any more dangerous to the public than the average trench coat?



The basis would have to come from the religious affiliation of the wearer and that brings us right back to the quandary of barring an article of clothing based on religious prejudices.

Great minds and all ... bitch.  

[Anonymous]

Okay, I agree with everything you just said BUT for the explosive vest thing. There are a lot of different articles of clothing that can hide explosive devices or weapons that have no religious affiliation.

True. and the explosive vest is really a horse of a different color.  The matter of how you go about keeping explosives out of a crowd is a lot more complex than the wearing of a burqa.

Where does that qualification of being a danger to the welfare of the general public begin and end?

 

Excellent question, and one that will be hard to answer in dealing with anarchy and terrorism in general.

In one of my previous posts in this thread, I stated that any legislation banning something like a burka, will require reasonable proof of the statistical probably that it is a danger to the public.

 I understand you, but I'm not sure that sort of proof is needed in the US in order to support such legislation.  I think the key argument here will be that law enforcement is inconvenienced/hampered by disguise, and that the resulting risk is unacceptable.

Now, millions of women across the globe wear these God damn black bags and so far it seems that a very, very small percentage are packing exploding underwear. Given that, where would we find the basis that says a burka is any more dangerous to the public than the average trench coat?

When speaking of the burqa I am only concerned with the bag over the head.  The body bag, as I understand it, is a different garment and not one I've been talking about. Also, I hope I didn't mislead you with the explosive vest thing.  I'm still confining my argument against the burqa to its veiling of the face and head.  

The basis would have to come from the religious affiliation of the wearer and that brings us right back to the quandary of barring an article of clothing based on religious prejudices.

Yes, but unlike all other religious costumes the burqa does veil the face.  I'm saying that the wearer can claim it's a religious choice but the state can say that it's not a choice we can allow, religion or no.

[RW]

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

[Renee]

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

As Peaches said, it would have to be up to law enforcement to make the case that it hampers their ability to keep the public safe.



Here in the US any legislation subscribing to that premise would undoubtedly end up challenged in the courts. Then it would be up to judicial branch of the government to sort it out.