Political footballs and constitutional law

[papau]

Anyone have a set of doctrines, principles or precedents that will enable folks to distinguish confidently between laws and government actions that are "constitutional" and those that are not?

http://www.latimes.com/news/opinion/la-oe-brooks20jan20,0,7734452.story?track=tottext,0,2587052.story?track=tothtml

From the Los Angeles Times
ROSA BROOKS
Political footballs and constitutional law
Rosa Brooks

January 20, 2006

ON MONDAY, my constitutional law class will meet for the first time this semester, and I don't have the slightest idea what to tell the students about the subject we'll be discussing for the next 13 weeks.

I've taught the class before, and by now I know most of the canonical cases as well as I know my own phone number. My problem is that I'm no longer sure there's really a subject to teach.

I don't seem to be the only one confronting this problem. As Harvard Law School professor Lawrence Tribe recently observed: "Conflict over basic constitutional premises is today at a fever pitch. Ascertaining the text's meaning; the proper role and likely impact of treaty, international and foreign law; the relationships among constitutional law, constitutional culture and constitutional politics; what to make of things about which the Constitution is silent — all these, and more, are passionately contested, with little common ground from which to build agreement."

As a result, Tribe says he will not attempt to publish a revised version of his much-read treatise on constitutional law. And if Tribe, no shrinking violet, can no longer figure out how to write a treatise on constitutional law, where does that leave those of us lesser mortals who just want to teach the topic in a way that is honest, useful and fair?

Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals in Chicago, who also lectures at the University of Chicago Law School, joined the fray last year, writing that most constitutional questions "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms…. It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly." <snip>

[bemildred]

1. This really reminds me of the development of Christian theology.

The clear and unambiguous meaning of the original is, over a century or two, hair-split into a malleable tangle which only serves the purposes of those that sell "justice" for a living. In Christian theology this culminates in the various "heresies" that so many have died for. In Constitutional law it results in the endless discussion of what "no law" means in English, and similar efforts to vitiate the plain English meaning of the words in the Constitution.

[papau]

2. Law and Dogma are indeed similiar - but "heresies" do not worry me like

a right to break the law does.

[bemildred]

4. Calling an idea "heresy" IS an attempt to suppress thought and speech.

And once you CAN do that, all options are open.

[Demeter]

3. One Good Thorough Impeachment, and Everyone Will Remember

what Constitutional means.