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?

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  1. Augustine Member
    Augustine
    @SaintAugustine

    Salvatore Padula: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 argumentsin favor of the civil law model it simply isn’t what our legal system (particularly our constitutional system) is based upon.

    If that’s the result of the argument, so be it.  (I have nothing to say on this.)

    But the argument is that the American judiciary should operate on the model of a country that has one and only one superior law which is written down.

    • #31
  2. Augustine Member
    Augustine
    @SaintAugustine

    Salvatore Padula: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?

    This was in response to an earlier comment that objected to Paulsen on the grounds that stare decisis is needed because one court may choose Y and a later court may need to avoid the (equally constitutional) not-Y.  Paulsen’s view is that the earlier court has no business choosing Y in the first place.

    What should a later court do if an earlier court chose Y?  I think Paulsen’s answer is: Just ignore it.  (And if it was the legislative branch that chose Y, uphold Y.)

    • #32
  3. Augustine Member
    Augustine
    @SaintAugustine

    Great Ghost of Gödel:

    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.

    That doesn’t affect soundness.  If it’s not false, it’s true.  (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.

    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.

    Traditionally, excluded middle is a disjunction, and any disjunction is traditionally used in a constructive dilemma.

    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”.

    Ok, I think I get it now.  You can indeed prove anything if you use that sort of conditional statement.

    But Paulsen’s argument does not use that sort of conditional proposition.  It’s a constructive dilemma–rather, a slightly more complex argument with a constructive dilemma base structure.  Without all the fancy symbols and using parentheses loosely, it’s:

    (A v not-A) AND (IF A then B) AND (IF not-A then C) AND (IF [B v C] THEN D)

    • #33
  4. Augustine Member
    Augustine
    @SaintAugustine

    Great Ghost of Gödel:

    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).

    Of course you can!  And of course it is sound!  Well, it is if any other premises are true–and if we’re using basic propositional logic with the assumption that every proposition is either T or F and never both.

    Maybe we aren’t using the same definition of soundness.  Where are you getting your definition from?  Mine’s from some standard logic textbooks, like Copi’s Intro to Logic and Lehman et al’s Power of Logic and Hurley’s Concise Intro to Logic.

    • #34
  5. Augustine Member
    Augustine
    @SaintAugustine

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

    I’m not sure what all your symbols mean.  There are different sets of logic symbols in different textbooks, and sometimes in different disciplines; maybe I’ve just never encountered the ones you’re using, though I think all of GGG’s symbols were familiar to me.

    I’m especially unclear on what P is supposed to mean in this reconstruction of the argument.

    But I’m pretty sure you needed a C: “A precedent is unConstitutional” and “A precedent adds no support to a later decision” are not the same proposition.

    • #35
  6. Salvatore Padula Inactive
    Salvatore Padula
    @SalvatorePadula

    Augustine: “But the argument is that the American judiciary should operate on the model of a country that has one and only one superior law which is written down.”

    The problem with that argument is that for a “text and nothing but the text” approach to constitutional interpretation to be feasible it would be necessary for us to have a radically different and much more comprehensive Constitution than the one we currently do.

    • #36
  7. Great Ghost of Gödel Inactive
    Great Ghost of Gödel
    @GreatGhostofGodel

    Augustine:(A v not-A) AND (IF A then B) AND (IF not-A then C) AND (IF [B v C] THEN D)

    But this is just an unnecessarily verbose way of saying B ⋁ C ⇒ D. If that’s what you intended, great, but keep in mind it’s not a proof of D.

    • #37
  8. Great Ghost of Gödel Inactive
    Great Ghost of Gödel
    @GreatGhostofGodel

    Augustine:

    Great Ghost of Gödel:

    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).

    Of course you can! And of course it is sound!

    I think you’re confusing formula and proof. Following your summary earlier, it sounds like the simplified claim consists of 4) and 5) from your OP. Again, your claim that it’s valid is spot on. It’s sound if “the judicial precedent adds no support to later decisions” is true or “it is unConstitutional” is. I thought we’d agreed that these are inductive, rather than deductive, inferences. Regardless, they don’t follow from LEM. As usual, we can take LEM as an axiom (classically). But it serves literally no purpose here since we aren’t constructing a proof by contradiction. We aren’t constructing a proof at all. We’re constructing a formula.

    Maybe we aren’t using the same definition of soundness.

    We are, or at least we’re trying to. :-)

    Where are you getting your definition from? Mine’s from some standard logic textbooks, like Copi’s Intro to Logic and Lehman et al’s Power of Logic and Hurley’s Concise Intro to Logic.

    Logic and Structure

    Basic Proof Theory

    Practical Foundations of Mathematics

    Logical Labyrinths

    A Beginner’s Guide to Mathematical Logic

    Interactive Theorem Proving and Program Development

    The Little Prover

    among others. My name’s in the acknowledgements of the last. :-)

    • #38
  9. Sabrdance Member
    Sabrdance
    @Sabrdance

    Augustine:

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

    I’m not sure what all your symbols mean. There are different sets of logic symbols in different textbooks, and sometimes in different disciplines; maybe I’ve just never encountered the ones you’re using, though I think all of GGG’s symbols were familiar to me.

    I’m especially unclear on what P is supposed to mean in this reconstruction of the argument.

    But I’m pretty sure you needed a C: “A precedent is unConstitutional” and “A precedent adds no support to a later decision” are not the same proposition.

    P would be “precedent.”  The symbols I’m using are “typing shorthand for people who don’t have fancy keyboards and an encyclopedic knowledge of HTML or alt- functions.”

    I thought about including C, but in your structure, precedent only takes two values: unconstitutional or worthless.  Hence, ~A is functionally equivalent to C since C itself implies ~A.

    If precedent can have a third value, C, then you really do have an excluded middle -whatever “~A” means that is distinct from “C.”

    The argument may be sound, but it isn’t telling us anything, because the truth and falsity of the first three prepositions are, respectively, tautological, assumed, and assumed.  I think, for reasons given above, that the second proposition is actually false.

    • #39
  10. Larry3435 Inactive
    Larry3435
    @Larry3435

    A couple of quick points on why stare decisis almost never has anything to do with actual judicial decisions.

    First, stare decisis only applies when the same court considers an issue it has previously considered.  A lower level court is required to follow the opinions of a higher court.  That is not a matter of stare decisis.  Instead, it follows from the relative authority of the two courts.  So, for example, all lower federal courts must follow the decisions of the Supreme Court.

    Second, courts at the same level do not owe any deference to each other’s opinions (although one court may be persuaded by the other court’s reasoning).  Thus, the various federal Circuit Courts can, and often do, reach different conclusions on the same issue.  Typically, that is when the Supreme Court steps in to settle the disagreement.

    Third, the Supreme Court rarely has reason to decide a case based on stare decisis.  This is because the Supreme Court has discretion whether to hear most of its cases (through what is known as certiorari).  If an issue has previously been decided by the Supreme Court, the only reason the Court would take another case presenting the same issue is that some of the Justices think the question should be revisited or clarified.  Therefore, by the time a case is actually argued to the Supreme Court, stare decisis is pretty much beside the point.

    In short, stare decisis is a pretty insignificant legal doctrine, as a practical matter.

    • #40
  11. Larry3435 Inactive
    Larry3435
    @Larry3435

    Oh, and by the way, all of the discussion of Auggie’s five-point formal logic analysis, leading to the conclusion that “there are no judicial precedents to which judges need to adhere,” is beside the point.  Stare decisis is a convenience.  It is just Latin for “let sleeping dogs lie” (more or less).  It is not a binding legal doctrine.  Even the foremost advocate of stare decisis would not claim that courts “need to adhere” to prior decisions.  No formal or logical proof of that is required.

    • #41
  12. Salvatore Padula Inactive
    Salvatore Padula
    @SalvatorePadula

    I completely agree with Larry on the question of stare decisis, but I figured I’d spend some time explaining why the second prong of Paulsen’s argument, that the judiciary should defer to the legislature on questions of constitutional textual ambiguity, is unsound.

    The first important thing to note about constitutional jurisprudence is that the court rarely, if ever, is asked to decide a case where the constitutional text is unambiguously clear. When the constitutional text is unambiguous, like in the age requirement for the presidency, there is no need to litigate the matter in the first place. Consequently, the only constitutional cases that ever come before the Supreme Court are those which deal with an ambiguity in the constitutional text. If, pursuant to Paulsen, it is improper for the court to resolve constitutional textual ambiguity there is no reason whatsoever for the Supreme Court to take constitutional cases at all. With the exception of the recent recess appointments case, I cannot think of a single constitutional case which the Supreme Court would be allowed to resolve under Paulsen’s model.

    • #42
  13. Salvatore Padula Inactive
    Salvatore Padula
    @SalvatorePadula

    Larry: “Oh, and by the way, all of the discussion of Auggie’s five-point formal logic analysis, leading to the conclusion that “there are no judicial precedents to which judges need to adhere,” is beside the point. Stare decisis is a convenience. It is just Latin for “let sleeping dogs lie” (more or less). It is not a binding legal doctrine. Even the foremost advocate of stare decisis would not claim that courts “need to adhere” to prior decisions. No formal or logical proof of that is required.”

    Agreed. Paulsen’s argument may be carefully constructed and even logically sound (though that seems to be fairly hotly disputed here), but it ultimately rests on a misunderstanding of what the doctrine of stare decisis is and how it works in practice. He’s basically arguing against a straw man.

    • #43
  14. Larry3435 Inactive
    Larry3435
    @Larry3435

    I want to agree with what Sal says as well.  And I would go further.  To my mind, the most important provisions in the Constitution, or at least in the Bill of Rights, are the ones that limit the power of Congress to make certain laws.  I don’t see how one can plausibly trust Congress to be the entity which will enforce the limitations on Congress’s own powers.  That is really putting the fox in charge of guarding the hen house.  The Supreme Court is not a perfect watchdog, by any means.  But at least it provides an independent check on Congress overstepping its Constitutional authority.

    • #44
  15. Great Ghost of Gödel Inactive
    Great Ghost of Gödel
    @GreatGhostofGodel

    Larry3435:Oh, and by the way, all of the discussion of Auggie’s five-point formal logic analysis, leading to the conclusion that “there are no judicial precedents to which judges need to adhere,” is beside the point… No formal or logical proof of that is required.

    I’d go farther: if the argument was intended as a proof, it fails because it’s not a proof. If it’s intended as a formula, with one hypothesis being “legislation A is consistent with the Constitution” and the other being its negation, it’s question-begging, both formally and informally. As is often the case, it’s not that I disagree with the conclusion—I don’t. I just read the argument as intending to “seal the deal,” as it were, and unfortunately, it doesn’t.

    • #45
  16. Salvatore Padula Inactive
    Salvatore Padula
    @SalvatorePadula

    I’ve been giving the matter some thought as I’m driving up the coast from La Jolla to Newport Beach and I think I understand why Augustine finds Paulsen’s argument to be so compelling. If I recall correctly, Augustine is a professional philosopher. The theory of Paulsen’s argument does have a certain appeal to it. Its elegant. Its main flaw, it seems to me, is that it failed to recognize that the law (and the Constitution is law) is fundamentally a more practical endeavor then is pure philosophy. Paulsen seems to ignore the importance of structure in our constitutional system.

    • #46
  17. Great Ghost of Gödel Inactive
    Great Ghost of Gödel
    @GreatGhostofGodel

    Salvatore Padula:Paulsen’s argument may be carefully constructed and even logically sound (though that seems to be fairly hotly disputed here)…

    Nah, not hotly, especially when you consider how much trouble people have in even constructing a valid formula. So it holds up quite well, formally speaking! But to be sound, it must be true in all models, and if memory serves me correctly, you offered a model in which it isn’t: one in which proposition A could be taken as the conjunction of two pieces of legislation, both found to be consistent with the Constitution, but contradicting each other (presumably in such a way that the conjunction is expected to be found unconstitutional).

    There are other criticisms of the exercise in formal logic, yes, but as several people have pointed out, and I strongly agree, the question isn’t amenable to formal logic in the first place, both because there’s no means of establishing “A is consistent with the Constitution” or its negation in a way that commands universal assent of the type we require formal logical propositions to possess, and (relatedly) belief in such constitutionality seems to arise from induction, taking it outside deductive logic entirely (and into probability, properly understood).

    tl;dr The map is not the territory.

    • #47
  18. Great Ghost of Gödel Inactive
    Great Ghost of Gödel
    @GreatGhostofGodel

    By the way, that “Constitutional contradiction” idea may not be as hypothetical as it sounds. At Gödel’s citizenship hearing, he was most anxious to share with the judge his discovery of a logical flaw in the Constitution that would make a dictatorship possible. (Remember that Gödel was an Austrian immigrant to the US in 1940—”accidental legal transition to a dictatorship” was not a hypothetical to him).

    • #48
  19. Sabrdance Member
    Sabrdance
    @Sabrdance

    Great Ghost of Gödel:By the way, that “Constitutional contradiction” idea may not be as hypothetical as it sounds. At Gödel’s citizenship hearing, he was most anxious to share with the judge his discovery of a logical flaw in the Constitution that would make a dictatorship possible. (Remember that Gödel was an Austrian immigrant to the US in 1940—”accidental legal transition to a dictatorship” was not a hypothetical to him).

    And his friends told him to shut up.  I’ve always regretted that choice -and wondered what it was he thought he’d found.  Most of the methods I know to make a dictatorship possible require one or more branches to manifestly not do its job, but that wouldn’t seem to be what Godel had in mind.

    • #49
  20. Augustine Member
    Augustine
    @SaintAugustine

    Salvatore Padula:Consequently, the only constitutional cases that ever come before the Supreme Court are those which deal with an ambiguity in the constitutional text. If, pursuant to Paulsen, it is improper for the court to resolve constitutional textual ambiguity there is no reason whatsoever for the Supreme Court to take constitutional cases at all.

    Well, I’m a poor enough disciple of Paulsen.  You may need a better one to respond on his behalf.  (Would that he were on Ricochet!  Wait!  I wonder if he is!)

    Poor though I am, I think the Paulsenish replies may be these:

    First: If there’s a real ambiguity here, then the federal Court’s job is to not take the case and thereby defer to Congress–or to take the case and uphold the law!

    Second: Let’s not forget the central underpinning of the whole Paulsen teaching: Originalism.  Federal courts really do take up cases where is no ambiguity in the original written text.  There are judges (at least four on SCOTUS) who rule based on some sort of unwritten or evolving Constitution, and scholars (like Amar) who support this.  They oughtta stop!

    • #50
  21. Augustine Member
    Augustine
    @SaintAugustine

    Larry3435:A lower level court is required to follow the opinions of a higher court.

    Paulsen argues otherwise, by the way, in “The Irrepressible Myth.”

    A couple of quick points on why stare decisis almost never has anything to do with actual judicial decisions.

    . . .

    In short, stare decisis is a pretty insignificant legal doctrine, as a practical matter.

    Ok, cool.  Jolly good!  I’m not in any position to object; Paulsen seems to disagree, but that’s all I can say.  I’m not sure I know this stuff enough even to explain the objection he’d make, but less take it up myself!

    • #51
  22. Augustine Member
    Augustine
    @SaintAugustine

    Larry3435:Stare decisis is a convenience. . . . It is not a binding legal doctrine. Even the foremost advocate of stare decisis would not claim that courts “need to adhere” to prior decisions.

    The situation here is the same as the previous comment.  On this one I’m at least half inclined to review Paulsen and try to reconstruct the Paulenish argument to the contrary.

    But only half inclined, and right now a half rounds down to not bothering.

    (The insistence by the Senate left that a new judge adhere to the sacred precedent of Roe v. Wade comes to mind as a counter-objection, but so does Ryan’s swift rejoinder from earlier in this thread: Blame Congress for that error, not the judges and lawyers!)

    • #52
  23. Augustine Member
    Augustine
    @SaintAugustine

    Larry3435:

    I don’t see how one can plausibly trust Congress to be the entity which will enforce the limitations on Congress’s own powers. That is really putting the fox in charge of guarding the hen house. The Supreme Court is not a perfect watchdog, by any means. But at least it provides an independent check on Congress overstepping its Constitutional authority.

    Paulsen agrees entirely!  (See “The Irrepressible Myth.”)

    He says courts should defer to Congress on ambiguity.  They should drop the law on Congress like a ton of bricks when Congress goes against the Constitution.

    • #53
  24. Augustine Member
    Augustine
    @SaintAugustine

    Sabrdance:

    P would be “precedent.”

    Oh, jolly good!  (I was trying to read is as simple propositional logic, but I think you were using a sort of predicate logic.)

    The symbols I’m using are “typing shorthand for people who don’t have fancy keyboards and an encyclopedic knowledge of HTML or alt- functions.”

    Right on.

    I thought about including C, but in your structure, precedent only takes two values: unconstitutional or worthless. Hence, ~A is functionally equivalent to C since C itself implies ~A.

    Oh, of course!  Unconstitutionality equals inconsistency with the Constitution.  Good!  We can do this with one less atomic proposition.  But you still need one more, right?

    A = consistent with the Const.

    B = adding judicial support to later decisions

    C = requiring judicial adherence

    The argument may be sound, but it isn’t telling us anything, because the truth and falsity of the first three prepositions are, respectively, tautological, assumed, and assumed. I think, for reasons given above, that the second proposition is actually false.

    Oh, good!  So you reject a premise.  Premises 2-4 seem obvious to me, but you reject Premise 2.

    Happy to hear why!

    • #54
  25. Augustine Member
    Augustine
    @SaintAugustine

    Salvatore Padula: If I recall correctly, Augustine is a professional philosopher.

    Indeed.

    Its main flaw, it seems to me, is that it failed to recognize that the law (and the Constitution is law) is fundamentally a more practical endeavor then is pure philosophy. Paulsen seems to ignore the importance of structure in our constitutional system.

    Look, I can’t speak for him here, but my guess is he’d laugh at this remark, or refute it handily.

    • #55
  26. Augustine Member
    Augustine
    @SaintAugustine

    Salvatore Padula:Augustine: “But the argument is that the American judiciary should operate on the model of a country that has one and only one superior law which is written down.”

    The problem with that argument is that for a “text and nothing but the text” approach to constitutional interpretation to be feasible it would be necessary for us to have a radically different and much more comprehensive Constitution than the one we currently do.

    This observation is the basis for Paulsen’s argument in “A Government of Adequate Powers”, so he’s no stranger to the fact.

    In any case, I don’t see why a minimally comprehensive Constitution should considered incompatible with a state of affairs where there is only one superior written law.  Paulsen says: A minimally comprehensive Constitution is one which leaves plenty of room for the legislative branch, the states, and ultimately the people to figure out all the other details.

    (And I believe Epstein says: A minimally comprehensive Constitution tells us that we’re supposed to have a minimal government.  I want Epstein to be right, by the way, but that is a question I shall have to consider another day.)

    • #56
  27. Augustine Member
    Augustine
    @SaintAugustine

    Great Ghost of Gödel:

    Augustine:(A v not-A) AND (IF A then B) AND (IF not-A then C) AND (IF [B v C] THEN D)

    But this is just an unnecessarily verbose way of saying B ⋁ C ⇒ D. If that’s what you intended, great, but keep in mind it’s not a proof of D.

    No.  It’s a way of saying both (B v C) and (B v C) –> D.

    And that, coupled with the proof of (B v C), is a proof of D.

    (Now I suppose your reply is that (A v not-A) can’t be used as a proof of (B v C).  But that, I suppose, will be the subject of the next comment.)

    • #57
  28. Augustine Member
    Augustine
    @SaintAugustine

    Great Ghost of Gödel:

    I think you’re confusing formula and proof.

    No.

    It’s sound if “the judicial precedent adds no support to later decisions” is true or “it is unConstitutional” is. I thought we’d agreed that these are inductive, rather than deductive, inferences.

    Do you mean: You thought we’d agree that the discovery that one of these is true must be made by induction?  If so, then of course we do!

    As an extension, applying Paulsen’s argument to any particular precedent would require an extended inductive argument.

    Regardless, they don’t follow from LEM. As usual, we can take LEM as an axiom (classically). But it serves literally no purpose here since we aren’t constructing a proof by contradiction.

    This is a proof by constructive dilemma form.  The Law of Excluded Middle here functions merely as an either-or statement.  Any either-or proposition can be used in a constructive dilemma.  (The fact that it just happens to be a tautology, on classical logic at least, just happens to be . . . rather nice.)

    (Continued)

    • #58
  29. Augustine Member
    Augustine
    @SaintAugustine

    Continued:

    Great Ghost:

    We are, or at least we’re trying to. :-)

    Well, you cite some nice sources!  (And good job being mentioned in one!  I tried to multiple-like your comment just for that.)  It may be that you’re working with more advanced logic than the sources I use in my little undergrad courses.  The definition of a sound argument in my sources is a valid argument with all true premises.  Classically, if a premise isn’t false it is true, vacuous or not.  So the argument cannot be called unsound on account of the first premise.

    (By the way, “vacuous” isn’t a term used much in the logic I work with.  I presume you mean “empty” or “true according to form” or something like that.)

    • #59
  30. Augustine Member
    Augustine
    @SaintAugustine

    Great Ghost of Gödel: But to be sound, it must be true in all models, and if memory serves me correctly, you offered a model in which it isn’t: one in which proposition A could be taken as the conjunction of two pieces of legislation, both found to be consistent with the Constitution, but contradicting each other (presumably in such a way that the conjunction is expected to be found unconstitutional).

    Who, me?

    What are you talking about?  There’s no proposition in Paulsen’s argument that could be taken as the conjunction of two pieces of legislation.

    • #60
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