Promoted from the Ricochet Member Feed by Editors Created with Sketch. Unlearning Constitutional Law

 
Unlearn
Take it from Yoda.

In a recent post on Marbury v. Madison, I mentioned Michael Stokes Paulsen, co-author of The Constitution: An Introduction and a clear thinker extraordinaire. I’ve been doing a little more reading from him, along with a bit from Ricochet’s own John Yoo. (It’s wonderful what you can download in PDF these days to read on your phone.)

Paulsen has a significant analysis of the role of stare decisis, the fancy Latin name for the principle that a court should follow precedent. More simply, it’s the idea that what courts have said in the past should determine what a judge says today.

This principle is big in the common understanding and practice of law in the United States. It’s why lawyers and judges have to know so many prior cases, especially prior Supreme Court cases. It’s also why, sometimes, that’s pretty much all they seem to be taught to care about. As Paulsen says in his (short, very readable) article “Everything You Need to Know About Constitutional Law”:

The problem with many bad Constitutional Law courses is that they are all about the precedents, and not at all about the Constitution.

He also notes in the sequel article “Citizens, Unite!” that:

[P]recedent … should never trump the written constitutional text, but might be useful for seeing what someone else has thought about an issue.

In the end, Paulsen doesn’t make much of stare decisis. Back to “Everything You Need to Know”:

The short answer to the problem of precedent is that some precedents are sound — helpful interpretations of the Constitution that can help resolve doubtful points — and other precedents are unsound, unhelpful misinterpretations of the Constitution’s text, structure, and history. That’s really all there is to it. The sound precedents are useful guides; the unsound ones should be regarded as having no authority or validity whatsoever.

In his more academic writings, he says the same. From “The Irrepressible Myth of Marbury” (pp. 626-7):

But even more fundamentally, when used in this strong sense of adhering to precedents even if wrong, stare decisis is unconstitutional. (In any other sense, stare decisis is simply irrelevant, or deceptive: a court that invokes the doctrine to justify a decision it was prepared to reach on other grounds is adding a makeweight, or using the doctrine as a cover for its judgment on the merits.)

And then, in of “The Text, the Whole Text, and Nothing but the Text,” Paulsen summarizes his earlier writer as follows (p. 1411):

[T]hat stare decisis, in the strong sense of deliberately adhering to precedents even if wrong, is unconstitutional, and that stare decisis, if employed in support of a result independently reached, is a pure makeweight …

Paulsen’s final conclusion, in “The Irrepressible Myth” (p. 628):

The doctrine [of stare decisis] should be repudiated entirely in the area of constitutional law.

We can condense all of this into an argument with a (modified) constructive dilemma form:

  1. Either a judicial precedent is consistent with the Constitution, or it is not.
  2. If it is consistent with the Constitution, then it adds no support to later decisions.
  3. If it is not consistent, then it is unConstitutional.
  4. If a judicial precedent either adds no support to later decisions or is unConstitutional, then judges don’t need to adhere to it.
  5. Therefore, there are no judicial precedents to which judges need to adhere.

This is what logicians call a valid argument, which means that if the premises are true, then the conclusion must to be true. The first premise has the form “Either A or not A;” that makes it a tautology, a statement that cannot possibly be false; so Premise 1 is true. And the other three premises seem only slightly less obvious to me.

If Paulsen’s argument is correct — and if I have reassembled it correctly — many of us have to unlearn nearly everything we thought we knew about Constitutional law. It would mean that there is no such thing as case law, no such thing as court cases with the weight of law (not as far as courts should be concerned, anyway).

But you Ricochetti are clever folks, and many of you have been to law school–unlike me. Do any of you know of some objection I should know about?

There are 80 comments.

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  1. Pony Convertible Member

    I took former Congressman John Hostettler’s Constitution Institute course. The arguments he makes are similar to what you have documented. There was one significant difference. He points out that judges rulings are merely opinions, and the other two branches do not have to follow those opinions. If fact, since they have sworn to withhold the Constitution, they are required by law not to honor opinions if they don’t agree with what is written in the Constitution.

    He told an interesting story that pointed out how judges focus on previous opinions more than the written document. When LBJ needed to be hurriedly sworn in, the team of judges and lawyers on Air Force One with him, couldn’t figure out where to find the words for swearing in the President, which are in the Constitution. You would think since that document is supposed to guide them in all they do, they would practically have it memorized.

    • #1
    • August 5, 2015, at 6:16 AM PDT
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  2. Saint Augustine Member
    Saint Augustine

    Pony Convertible:

    He points out that judges rulings are merely opinions, and the other two branches do not have to follow those opinions. If fact, since they have sworn to withhold the Constitution, they are required by law not to honor opinions if they don’t agree with what is written in the Constitution.

    Great stuff! Sounds a lot like Paulsen in “The Irrepressible Myth.”

    He told an interesting story that pointed out how judges focus on previous opinions more than the written document. When LBJ needed to be hurriedly sworn in, the team of judges and lawyers on Air Force One with him, couldn’t figure out where to find the words for swearing in the President, which are in the Constitution. You would think since that document is supposed to guide them in all they do, they would practically have it memorized.

    Ouch!

    Thanks for the comment, Pony Convertible!

    • #2
    • August 5, 2015, at 6:32 AM PDT
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  3. Hammer, The Member

    I recently made the argument that, for many of us, the most basic of constitutional understandings is incorrect. Namely, that it is a limiting, rather than an enabling document. If you start from the premise that the federal government has no power whatsoever, the constitution starts to look much different.

    And yes, I am not a huge fan of stare decisis. If a previous court got it wrong, that court should be overruled. But I think Epstein/Yoo do a nice job (you’ll have to listen to Law Talk, though) of explaining why consistency is still important.

    • #3
    • August 5, 2015, at 7:46 AM PDT
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  4. Saint Augustine Member
    Saint Augustine

    Ryan M:I recently made the argument that, for many of us, the most basic of constitutional understandings is incorrect. Namely, that it is a limiting, rather than an enabling document. If you start from the premise that the federal government has no power whatsoever, the constitution starts to look much different.

    And yes, I am not a huge fan of stare decisis. If a previous court got it wrong, that court should be overruled. But I think Epstein/Yoo do a nice job (you’ll have to listen to Law Talk, though) of explaining why consistency is still important.

    Yeah, I’ve been meaning to listen to that podcast of yours. Thanks for the reminder!

    I do listen to Law Talk. Eventually I hope to read Epstein’s Classical Liberal Constitution. (I’m hoping Epstein’s hermeneutics will provide some good reasons to disagree with Paulsen’s “A Government of Adequate Powers.”)

    On consistency: Are you talking about Epstein’s idea that “even strict originalists should not be so foolish as to seek to undo those institutions that have allowed the nation to flourish”?

    • #4
    • August 5, 2015, at 8:00 AM PDT
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  5. twvolck Member

    The first premise, like many that stem from seeming tautologies, is problematic. In practice, there can be judicial decisions that are consistent with the Constitution but not consistent with other judicial decisions that also would be consistent with the Constitution. So you can think of stare decisis as a rule that allows earlier courts to choose a direction, out of several different ones that might have been chosen, after which later courts follow as far as the earlier courts have shown the way, and perhaps chart their own directions further down the path.

    Stare decisis has merit in commercial matters and probably in administrative law. But in other matters it does not seem necessary.

    • #5
    • August 5, 2015, at 8:08 AM PDT
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  6. Great Ghost of Gödel Inactive

    I hate to do this, but as a Constructivist, I’m afraid I must:

    Your 1) doesn’t hold in Constructivist logic. It’s just the Law of the Excluded Middle. Setting that aside, though, this isn’t even sound classical logic (although you’re correct that it’s a valid argument). You can’t start with a vacuous premise (T ⋁ F) and draw a sound conclusion. In other words, from T ⋁ F you can prove anything. Worse, from F you can prove anything!

    But it’s an error to use formal logic this way anyway. “A judicial precedent is consistent with the Constitution” is a question, not an assumption you get to make, and we wouldn’t need to bother with any of this if different people didn’t believe differently about it. Consequently, precedents do add or subtract information about the Constitution to later interpretations. The right field to apply to Constitutional interpretation isn’t (a) formal logic. It’s Bayesian probability (which, properly understood, is a generalization of Heyting algebra, itself a generalization of Boolean algebra, to situations involving incomplete information which, when acquired, is accounted for by Bayes’ theorem). Laplace was already applying (his rendition of) Bayes’ theorem (the same one we use today) to jurisprudence in the 18th century. We should continue to do so.

    • #6
    • August 5, 2015, at 8:10 AM PDT
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  7. Saint Augustine Member
    Saint Augustine

    twvolck:

    The first premise, like many that stem from seeming tautologies, is problematic. In practice, there can be judicial decisions that are consistent with the Constitution but not consistent with other judicial decisions that also would be consistent with the Constitution.

    Sticking with just the logic, I don’t see the problem. Some sentence X can be entirely consistent with some sentence Y as well as with not-Y; this observation in no way undermines the claim that Y is either true or false.

    Now, speaking legally, it seems to me that you are exactly right in giving this objection to the information on Paulsen above! Nicely done!

    But it only applies to the Paulsen material above when that material is taken by itself. It doesn’t apply to the whole of Paulsen’s understanding of the law.

    (Continued)

    • #7
    • August 5, 2015, at 9:23 AM PDT
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  8. Saint Augustine Member
    Saint Augustine

    Continued:

    Paulsen also says that a court’s only business with respect to the Constitution is to rule on a lesser law’s consistency with it.

    So if the Supreme Court hears a challenge to the Constitutionality of a law saying Y, and Y is consistent with the Constitution, the Court upholds the law. If there’s a challenge to the Constitutionality of a law saying not-Y, and not-Y is consistent with the Constitution, the Court upholds the law.

    (If there’s a challenge to a law saying not-Y on the basis of a prior law which says Y, I guess Paulsen would say the Court strikes down the new law.)

    Paulsen’s understanding of the law is a nicely integrated whole, and I think you’ve just illustrated that there’s a problem with taking the parts without the whole!

    • #8
    • August 5, 2015, at 9:23 AM PDT
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  9. Saint Augustine Member
    Saint Augustine

    Great Ghost of Gödel:Your 1) doesn’t hold in Constructivist logic. It’s just the Law of the Excluded Middle.

    Indeed, it is the Law of Excluded Middle, which I grant will not hold in every kind of logic. (Whether I should revise the opening post with that in mind I shall hopefully have the presence of mind to consider later.)

    (Continued)

    • #9
    • August 5, 2015, at 9:28 AM PDT
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  10. Saint Augustine Member
    Saint Augustine

    Continued:

    . . . this isn’t event sound classical logic (although you’re correct that it’s a valid argument). You can’t start with a vacuous premise (T ⋁ F) and draw a sound conclusion. In other words, from T ⋁ F you can prove anything. Worse, from F you can prove anything!

    I believe you’re saying that the first premise is vacuous, and thus that, on classical logic, the argument is not sound. (I’ll assume, unless you say otherwise, that you are using the word “sound” in the usual technical sense employed by logicians.)

    But I’m afraid I don’t quite follow you. If the argument is valid and not sound, then it must have a false premise. Which premise is false–the first? Why is it false (in classical logic)?

    Are you using “(T ⋁ F)” to stand for the first premise? That means “TRUE or FALSE” in any system of symbolization I’m familiar with. But what you could mean by “from FALSE you can prove anything (in classical logic)” or “from TRUE or FALSE you can prove anything (in classical logic)” is beyond me.

    (From a premise which affirms both the truth and falsity of a proposition, you can affirm anything; but that’s a different matter entirely.)

    (Continued)

    • #10
    • August 5, 2015, at 9:29 AM PDT
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  11. Saint Augustine Member
    Saint Augustine

    Continued:

    But it’s an error to use formal logic this way anyway. “A judicial precedent is consistent with the Constitution” is a question, not an assumption you get to make, . . . .

    Paulsen never treats this as an assumption to be made. It’s something a Court has to work hard to determine, and present evidence for in its decision. That evidence is usually (or always) going to be inductive; I imagine Bayesian techniques would be well suited for analyzing it in most (or all) cases!

    Consequently, precedents do add or subtract information about the Constitution to later interpretations.

    Yes, of course precedent can be useful in helping a judge know whether a law is consistent with the Constitution, and in this sense Paulsen acknowledges precedent can add or subtract information about the Constitution.

    His point is that precedent doesn’t have any kind of authority over a judge. It gives information, but it doesn’t make law.

    • #11
    • August 5, 2015, at 9:29 AM PDT
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  12. Salvatore Padula Inactive

    The big problem with Paulson’s argument is that he seems to be operating under the impression that the Constitution generally permits only a single specific outcome on any given question. That simply is not the case. In the United States the doctrine of stare decisis is used most commonly in constitutional cases not to bolster unconstitutional opinions, but to determine which of several possible constitutional outcomes will be used. Contra Paulson, stare decisis is not the doctrine that courts should follow precedent even when it is clearly wrong. It is better understood as away to ensure a modicum of judicial consistency by requiring that a precedent actually be wrongly decided in order to be ignored, rather than just not being a preferred interpretation of the current court.

    • #12
    • August 5, 2015, at 9:30 AM PDT
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  13. Hammer, The Member

    Salvatore Padula:The big problem with Paulson’s argument is that he seems to be operating under the impression that the Constitution generally permits only a single specific outcome on any given question. That simply is not the case.

    This is precisely the problem with your point #1. On the flip-side of that, however, remains the notion that stare decisis is an unmovable principle that requires bad law not be overturned. These days, it is a question asked (during confirmation) solely to implicate whether a justice will likely overturn Roe v. Wade (etc…). In that sense, it is fair to say that many congressmen lack even the most basic understanding of constitutional law. That is the least cynical explanation, anyway.

    • #13
    • August 5, 2015, at 10:45 AM PDT
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  14. Saint Augustine Member
    Saint Augustine

    Salvatore Padula:[Paulsen] seems to be operating under the impression that the Constitution generally permits only a single specific outcome on any given question.

    Not at all! The IF clause of “If it is consistent with the Constitution, then it adds no support to later decisions” is very flexible and easily affirmed! From “A Government of Adequate Powers” by Paulsen:

    My proposition is that where the text yields “A, B, C, or D,” it is not legitimate for the judiciary to choose A and impose that as if it is the single, correct answer. Where it yields A, B, C, or D, and the legislature has acted pursuant to option A or option C, it is the duty of the courts to accept that legislative action

    Salvatore:

    In the United States the doctrine of stare decisis is used most commonly . . . to determine which of several possible constitutional outcomes will be used.

    Paulsen teaches that the courts have no business choosing among possible constitutional outcomes. That’s the business of the legislature; Paulsen in the same source:

    The power of constitutional construction within the boundaries of a general text is for Congress, not the courts.

    Salvatore:

    . . . stare decisis . . . . is . . . a way to ensure a modicum of judicial consistency by requiring that a precedent actually be wrongly decided in order to be ignored . . . .

    Unless I misread him, Paulsen concurs. (His point is not that earlier precedent should be ignored, but that it lacks authority over a court.)

    • #14
    • August 5, 2015, at 10:51 AM PDT
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  15. Salvatore Padula Inactive

    It’s quite common to encounter hostility on the right to such features of our legal system as judicial review and stare decisis. I think most of this antipathy is misplaced. Both doctrines are grounded firmly in the original understanding of the Constitution. The frequent attempts by many on the right to argue otherwise seem to be more a reaction to judicial decisions which the right disagrees with than they are based on a solid foundation of constitutional originalism. The Constitution was drafted and ratified by men steeped in the common law legal tradition of which the doctrine stare decisis is a cornerstone. Judicial review was not mentioned specifically in the Constitution merely because everyone involved in the drafting and ratification simply assumed it to be within the power of the judiciary. A reading of the Federalist Papers results in numerous references to the existence of judicial review and during the ratification debates the existence of judicial review was explicitly assumed by both supporters and opponents of ratification.

    The basic problem with Paulson’s argument is that it does indeed require us to unlearn constitutional law. I understand and sympathize with much of the frustration felt by conservatives about the judiciary’s actions on many important issues, but as the saying goes “hate the player not the game.” Paulson is essentially asking us to rewrite the rules of the game because our side has been losing recently.

    • #15
    • August 5, 2015, at 10:52 AM PDT
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  16. Salvatore Padula Inactive

    Augustine: “Unless I misread him, Paulsen concurs. (His point is not that earlier precedent should be ignored, but that it lacks authority over a court.)”

    In that case, his views are not really different than those of every sitting justice on the Supreme Court (Thomas claims to give precedent no weight, but his practice is otherwise). At the Supreme Court, precedent is treated as persuasive authority, as opposed to controlling authority.

    • #16
    • August 5, 2015, at 11:02 AM PDT
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  17. Hammer, The Member

    Salvatore Padula:In that case, his views are not really different than those of every sitting justice on the Supreme Court (Thomas claims to give precedent no weight, but his practice is otherwise). At the Supreme Court, precedent is treated as persuasive authority, as opposed to controlling authority.

    As I said: where it is most misinterpreted is in congress, during confirmations. Most of those questions are designed purely to establish partisan bias, and that is glaringly obvious. It seems a farce, and much better to simply acknowledge that presidents will attempt to insert justices of their own political persuasion.

    • #17
    • August 5, 2015, at 11:13 AM PDT
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  18. Saint Augustine Member
    Saint Augustine

    Salvatore Padula:

    Paulson is essentially asking us to rewrite the rules of the game because our side has been losing recently.

    Well, you can have that suspicion of his motive I suppose. But he argues with great care that the rules he gives us are the right rules, the lawful rules–the rules established by the Constitution and by the fact that it is the supreme authority in the domain of law.

    • #18
    • August 5, 2015, at 11:25 AM PDT
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  19. Saint Augustine Member
    Saint Augustine

    Salvatore Padula

    Augustine: “Unless I misread him, Paulsen concurs. (His point is not that earlier precedent should be ignored, but that it lacks authority over a court.)”

    In that case, his views are not really different than those of every sitting justice on the Supreme Court (Thomas claims to give precedent no weight, but his practice is otherwise). At the Supreme Court, precedent is treated as persuasive authority, as opposed to controlling authority.

    Well I’m pretty sure Paulsen would disagree that 9/9 on SCOTUS agree with his view of precedent. So if you are correct then I must have done a poor job explaining or understanding him!

    I’m too busy at the moment to figure out exactly what’s going on here.

    (Well, maybe I’ll give it a shot. No promises.)

    • #19
    • August 5, 2015, at 11:26 AM PDT
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  20. Saint Augustine Member
    Saint Augustine

    Four ways we could look at precedent:

    1. Precedent is a useful guide to what other clever have said the Constitution means.
    2. Precedent tells a later court which of multiple Constitutionally legitimate options to take.
    3. Precedent has some power over a later court, but lacks the force of law.
    4. Precedent has authority to bind a later court.

    Paulsen accepts only number 1. (If, that is, I’m understanding him rightly.)

    I’d be surprised if there were more than two or three on SCOTUS who reject 2-4 above; certainly the Democratic appointees, Kennedy, and Roberts don’t.

    • #20
    • August 5, 2015, at 11:43 AM PDT
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  21. Salvatore Padula Inactive

    Augustine: “Well, you can have that suspicion of his motive I suppose. But he argues with great care that the rules he gives us are the right rules, the lawfulrules–the rules of the Constitution and its supreme authority in the domain of law.”

    But no one disputes that the Constitution is the supreme authority in the domain of law. Paulson seems to be arguing, not so much that the Constitution is supreme, but that the judiciary should be more deferential to the legislature in the interpretation of the Constitution’s content. I’ve no doubt he thinks his views are correct as to what our constitutional order should be. It’s just that they do not reflect what our constitutional order actually is or has ever been.

    • #21
    • August 5, 2015, at 11:46 AM PDT
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  22. Saint Augustine Member
    Saint Augustine

    Salvatore Padula:

    But no one disputes that the Constitution is the supreme authority in the domain of law.

    That depends. Are you referring to the written Constitution? There may well be those who think it’s not supreme, and there are certainly those who say it’s not the only supreme, such as A. Amar, the target of “The Text, The Whole Text, and Nothing But the Text.”

    Paulson seems to be arguing, not so much that the Constitution is supreme, but that the judiciary should be more deferential to the legislature in the interpretation of the Constitution’s content.

    He argues both of these, and also that the Constitution is the only supreme law–and some other things.

    • #22
    • August 5, 2015, at 12:00 PM PDT
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  23. Salvatore Padula Inactive

    My statement about no one disputing the supremacy of the Constitution should have been more qualified. What I should have said was that no one within the mainstream of American jurisprudence (and I understand Paulsen’s argument to be primarily directed toward the mainstream, rather than other equally marginal views on the other side. Correct me if I’m wrong.) disputes the primacy of the Constitution.

    I am referring to the written constitution. Most of what is characterized as a rejection of the written constitution is actually a disagreement over how the written text of the Constitution should be interpreted. There are very few examples of the Constitution saying clearly X and the court coming down clearly in favor of Y. The great debates in American jurisprudence are not about whether or not the text should be followed, but about what considerations should be included in determining the meaning of the text.

    • #23
    • August 5, 2015, at 12:19 PM PDT
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  24. Salvatore Padula Inactive

    Augustine: “So if the Supreme Court hears a challenge to the Constitutionality of a law saying Y, and Y is consistent with the Constitution, the Court upholds the law. If there’s a challenge to the Constitutionality of a law saying not-Y, and not-Y is consistent with the Constitution, the Court upholds the law.”

    What I don’t understand is why Paulsen thinks this view of what the Court should do is any different than the generally accepted view?

    • #24
    • August 5, 2015, at 12:38 PM PDT
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  25. Great Ghost of Gödel Inactive

    Augustine:(I’ll assume, unless you say otherwise, that you are using the word “sound” in the usual technical sense employed by logicians.)

    Correct.

    Which premise is false–the first? Why is it false (in classical logic)?

    Not false: vacuous.

    Are you using “(T ⋁ F)” to stand for the first premise? That means “TRUE or FALSE” in any system of symbolization I’m familiar with.

    Correct. The first premise is tantamount to T ⋁ F. Traditionally, excluded middle is used to construct a proof by contradiction, which is sound in classical logic. Here we start with a tautology rather than “assume it is not the case that…”

    But what you could mean by “from FALSE you can prove anything (in classical logic)” or “from TRUE or FALSE you can prove anything (in classical logic)” is beyond me.

    Strictly speaking, you’re saying “(A ⋁ ¬A) ⇒ B”. A can have either the truth value T or the truth value F, with its negation having the opposite value. You can prove a disjunction by proving either of the disjuncts. So take whichever disjunct has the truth value F. Now B follows by ex falso quodlibet, but so does anything else.

    (From a premise which affirms both the truth and falsity of a proposition, you can affirm anything; but that’s a different matter entirely.)

    It’s actually not.

    • #25
    • August 5, 2015, at 1:11 PM PDT
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  26. Sabrdance Member

    Without weighing in on the merits of the point, I don’t think this argument gets where you want to go.

    P=A v ~A

    A–>B

    ~A->~B

    P=A->(P->B)

    P=~A->(P->~B)

    ____

    P|A->(B v ~B).

    From which we can argue that P doesn’t matter, because it can mean anything dependent on A, it’s support in the Constitution.

    OK. What is the rule for determining A or ~A?

    It won’t take long to figure out that A or ~A is conditioned on P, because judges make decisions based on what they’ve said in the past in similar circumstances. This is what we mean when we say judicial opinions fit facts to law. My understanding is that code law systems are much more detailed than our laws precisely because they lack the ability to use precedents that way, so they have to spell out every single exception, where we can rely on things like “common law defenses.”

    So the real logic of a court decision is

    (P&A)->B

    Therefore, ~P->~B

    Also, ~A->~B.

    And we’re back to the original argument which is simply whether a given precedent is a correct application of laws and facts, and whether a certain decision is consistent with the Constitution or not.

    We’ve talked in a great circle and not actually gotten anywhere.

    This strikes me as the reason the rule of law requires some externally knowable and verifiable measure of consistency. Does such even exist?

    • #26
    • August 5, 2015, at 1:19 PM PDT
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  27. Sabrdance Member

    Nuts. -> should probably be <->. Necessary and Sufficient, not merely Necessary.

    • #27
    • August 5, 2015, at 1:22 PM PDT
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  28. Great Ghost of Gödel Inactive

    Sabrdance:Nuts. -> should probably be <->. Necessary and Sufficient, not merely Necessary.

    I was just going to say (A ⇒ B ⋀ B ⇒ A) ⇒ (A ⇔ B), so if we accept LEM (I don’t, but working classically), B ⋁ ¬B, just as you say.

    You can’t start a proof with a tautology. Or rather, you can, but then you can prove anything (i.e. your proof is not sound).

    • #28
    • August 5, 2015, at 1:37 PM PDT
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  29. Salvatore Padula Inactive

    Sabrdance: “My understanding is that code law systems are much more detailed than our laws precisely because they lack the ability to use precedents that way, so they have to spell out every single exception, where we can rely on things like “common law defenses.”

    That is precisely correct. Paulsen’s argument seems to be essentially that the American judiciary should operate on a model akin to that found in countries with a civil law tradition. While there are arguments in favor of the civil law model it simply isn’t what our legal system (particularly our constitutional system) is based upon.

    • #29
    • August 5, 2015, at 1:43 PM PDT
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  30. Great Ghost of Gödel Inactive

    By the way, as fun as the formal logic footwork is, I should add that I don’t think that argument’s failure damages Paulsen’s thesis: we owe precedents that violate the intention of the authors of the Constitution no respect, and the text itself, along with the various contemporaneous documents both legal and extralegal that explain the thought behind the text, provide the lion’s share of the weight of interpretation.

    • #30
    • August 5, 2015, at 1:48 PM PDT
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