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Learning About Constitutional Law With Star Wars
An anonymous reader writes: In an upcoming paper (PDF) for the Michigan Law Review, scholar Cass Sunstein draws on Star Wars to make a couple key points about how constitutional law evolves. He writes, "Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis—and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time. ... The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes."
...from Ewoks: The Battle for Endor?
Do not look into laser with remaining eye.
Star Wars was based on Nazis
If this guy is considered the epitome of constitutional thought.
The constitution is like an author changing plot twists at the last minute.
No... it's not. That's why there's a whole set of checks and balances in how law is written and executed. These days with the legislature being flaccid, the executive branch implementing and reinterpreting law at whim and the judicial branch outright creating law - Yeah, to a supposed "constitutional scholar" it might seem like that - But that's not and never was the intent.
Words HAVE to mean things. Otherwise there's no common understanding and no way of acting as a unified whole.
It could be worse, you could be trying to learn Constitutional law from the average elected official, especially the last few presidents.
-- Slashdot, making the Left look conservative since 1997.
I thought the political message of Star Wars was clear: a powerful executive gradually demonizes, marginalizes, ignores and then disbands a representative body, while using force to intimidate and even kill anyone who resists or speaks against the central government.
Now where could we find a parallel....hmmm...
Forgive me if I skip any lecture about the Constitution from Cass Sunstein.
It isn't like the partial law from Star Wars isn't based on the well documented Roman System of governance.
You know the idea that there was a Republic system of government with a constitutional rule that will grant someone emergancy full authority in times of war. Which was abused by Julius Caesar to allow him to create the Roman Empire. Or was it Senator Palpatine who created the Galactic empire?
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
Sorry, I can't take seriously a paper on the development of constitutional law which starts with an analogy to Star Wars.
Neither can I. Just skimmed the article.
TL;DR: This is a rant/metaphor about Originalism. The author argues that both narratives and process of creating narratives have surprises. Constitutional law has many "I am your father" moments (yes, that's what the author in TFA calls them) when previous information in a narrative/legal principle is reinterpreted. But Originalism (according to TFA) wants to claim that these narrative/legal surprises were ALL planned and intended by George Lucas/the Founders all along. But of course, they weren't -- both Lucas and the Supreme Court have made up new stuff as necessary. Thus, Originalism is stupid. QED.
It's a really drawn-out argument to make a really simple (and not very nuanced) point. Beyond simply pointing out that Lucas -- like any author -- changes his mind and evolves a narrative dynamically as part of the writing process, I don't really get why any of the further Star Wars details are necessary (and aren't even very interesting or entertaining).
Sorry, I can't take seriously a paper on the development of constitutional law which starts with an analogy to Star Wars.
Why not? The point seems to be that a people's view of their constitution is a myth-making process. This idea is of course anathema to Americans, although clearly long-held interpretations of the US Constitution certainly color what we see as the "plain meaning" of the document.
But you can see see this consensus myth thing clearly over in Britain, which doesn't have a written constitution. That doesn't mean they don't have a constitution; it's in what nearly everyone agrees traditionally can or cannot be done. The Queen can't veto a law by withholding her assent, because it's just not done.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Does Cass Sunstein write Vogon poetry too?
Would you rather have it based on the militaristic approach of Star Trek, disguised as a perfect/harmonic society?
"I will make it legal"
I'm pretty sure that's already covered by Senator "I will make it legal" Palpatine.
All you need to know about constitutional law is in Episode 3. A henious enough event can be exploited to the point where you can essentially invalidate an entire constitution and, instead of condemnation, you will hear only cheering.
The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
Perhaps protection of commercial advertising is constitutional law's The Phantom Menace.
Sorry, I can't take seriously a paper on the development of constitutional law which starts with an analogy to Star Wars.
I don't blame you, but (just by skimming it) the thesis base its used analogy on Star Wars as a way to criticize... (unplanned) "non-sense"!
Antisthenes: "Wisdom begins by examining the words/names." - excuse my English, i am (slightly...) better with my Greek!
If all you see of that universe is the military, it does kinda look that way.
Of course it is not all thought out!
That is why we have Amendments and the Supreme Court.
The other side of the coin is "living document" where we change the meaning of the words to fit the current times.
I am much more in favor of using the tools given to us to change the Constitution vrs changing it's meaning based on current interpretation.
That "precedence" concept of common law should not apply to the Constitution, which is not "written in stone" but should be difficult to change to avoid repeats of Prohibition. The fact that Prohibition is one of the few "flip flops" in the Constitution shows that it works pretty well.
Never answer an anonymous letter. - Yogi Berra
How on earth did this get enough votes to make it into the Slashdot pool... Our founding fathers and George Lucas being compared?
Where it's not very deep, Even Slashdot isn't usually this shallow.... Or is it?
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
To the conservative majority here on slashdot, few things are scarier than the notion of something evolving. They are extremely selective about acknowledging changes to the constitution as being valid at all - notice their new war on the 17th amendment as one example - even when they are ratified by congress through the proscribed methods for amending the constitution. The idea that the constitution could itself evolve is nothing short of heresy for them.
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
Up votes? No, Ars Technica just pays to get on the front page.
Take the right to bear arms.
Black bear or brown bear? It's open to interpretation.
And the best quote from the Ars comment section was "Darth Vader" is pretty much a Germanic version of "Dark Father"... so for all of Lucas's failings, that " I am your father" moment that the paper is largely based on was likely not one of the serendipitous ones that the paper hopes it to be.
"Han shot first", OTOH, we see cropping up in law ALL THE TIME.
He didn't need no constitutional law.
I eat only the real part of complex carbohydrates.
...could be worse still: Slashdot could be teaching Constitutional Law, which means you'd start with a car analogy.
Quo usque tandem abutere, Nimbus, patientia nostra?
TBH, I don't even get why the TFA author's idea was necessary. The US Constitution was built out of a long series of debates, compromises, and not a little effort towards future-proofing (and let's be honest, idiot-proofing). That, and they included mechanisms to modify it as needed.
Sure, the process was arduous and it involved a lot of potential inclusions that would quite frankly scare many folks today. That said, once finalized and ratified, it's in place and should be treated as the original document. If you (or anyone) want it changed, then use the mechanisms included to do just that. We've managed to do so for a couple of centuries now without violating the thing, so why get all creative about it now?
Quo usque tandem abutere, Nimbus, patientia nostra?
Dude, that's like saying Canada is a militaristic society - because your entire gained knowledge of Canada involved hanging around the bridge of a Canadian warship, with the occasional excursion to foreign shores.
Quo usque tandem abutere, Nimbus, patientia nostra?
Isn't it in their nature to resist change, isn't the very definition of a conservative one who resists change? I believe everyone should live according to their nature.
Conservatives should do their thing, and if they find the world changing around them too rapidly, they should construct a mountain of bullshit and live safely on top of Bullshit Mountain.
Progressives and other communist sympathizer should live according to their nature as well, their family should get a fraction of resources equivalent to the world population (1 / 7 billion). Ideally that fraction includes a small soap box to stand up on to pontificate their chosen lifestyle. They can give everyone passing them by on the street the stink eye. Which is according to their nature and therefor the most direct route to True Happiness.
We run into troubles when one side controls police powers and uses that force to drag the opposing side to some terrible point in between (this is the math of vectors). One solution is to have color coded uniforms. One side can wear baby blue uniforms, the other can wear pink uniforms. The police force would only be permitted to act against people wearing the same color. Two opposing societies that are peaceful because we silently ignore one another. This is what is known as a social armistice.
The less is that a person with enough money and influence can force everyone to accept something obviously false, like Han shooting first or dollars having more rights than citizens.
The other side of the coin is "living document" where we change the meaning of the words to fit the current times.
I am much more in favor of using the tools given to us to change the Constitution vrs changing it's meaning based on current interpretation.
That's exactly the problem. Nobody wants to amend the Constitution, they want to "interpret" it, as if the meaning of it weren't clear enough as is. You mentioned Prohibition, which I think is one of the best examples. Nobody so far has been able to explain to me why we had to pass a constitutional amendment to outlaw alcohol, but the same thing is not necessary for any other drug. The entire war on drugs is an unconstitutional sham.
Taking guns away from the 99% gives the 1% 100% of the power.
...could be worse still: Slashdot could be teaching Constitutional Law, which means you'd start with a car analogy.
Unfortunately, someone ripped out all the wire for the copper, jacked the stereo, and left the car up on blocks with no wheels.
The Queen can't veto a law by withholding her assent, because it's just not done.
And, just to remind her of this, there is a statue of Oliver Cromwell just outside the house of Commons.
Watch this Heartland Institute video
No, there's more! Like all those people running around in spandex with TI scientific calculators, feeling bad about vapourizing a planet after struggling with their mixed feelings regarding the "do not interfere" stupid federation rule... Let's say it, ST is boring as looking at a snail go through your backyard's deck if anything. /SARCASM
If you think about it a bit more, ST is kind of a metaphor for US interventionism, AKA the Monroe Doctrine: Let's all look as if we were doing something on behalf of every living being, while making profit at it and don't ever think of all the sentient beings we've killed in between.
It only says bear arms. It doesn't specify which kind of bear arms. Grizzly, polar, you name it; its arms are up for grabs!
Cass Sunstein holds the laughable position that the second amendment is to ensure the government can be armed. Any of his other musings are probably similarly disconnected from reality.
Well, Star Wars *is* a global phenomenon and a staple of US culture loved and adored by millions across the globe. So, now that you draw the comparison to the founding fathers, in our modern times George Lucas has probably been more significant to most people than the founding fathers have.
Nobody so far has been able to explain to me why we had to pass a constitutional amendment to outlaw alcohol, but the same thing is not necessary for any other drug.
Because the Constitution "changed" (at least in its interpretation) in 1937. Long story short: from 1789 to 1937, the Supreme Court believed that enumerated powers existed, thus putting rather restrictive and fundamental limits on the powers of the federal government.
For some reason in 1937, one of the justices on the Supreme Court switched sides. And ever since, the Supreme Court has basically interpreted certain sections of the Constitution (e.g., "interstate commerce," "general welfare," etc.) to mean "the federal government can do anything any state or local government can do."
Now, whether this shift was due to FDR threatening to pack SCOTUS with his cronies or whether Owen Roberts just changed his mind for some other reason, it happened. And once voters saw the effects -- like getting benefits from Social Security, Medicare, more sweeping Civil Rights legislation possible, etc. -- they kept endorsing the idea that the enumerated powers shouldn't matter.
So yeah, before 1937, federal power was limited (though it should be noted that some previous SCOTUS decisions had interpreted various enumerated powers more or less broadly). After 1937, there is no effective distinction between what the federal vs. more local governments can do.
The Monroe Doctrine is dead. You're thinking the US as the world's police force and try to feel good about ourselves while we kill brown people (and Obama is trying to get us out of that role too, see Syria and Ukraine).
Oh for Pete's sake... GEORGE LUCAS has had more significance than our founding fathers to the current generation?!?
What kind of history are they (not) teaching in public schools these days? If what you say is true, this is sad. It means we are abandoning our founding principles and putting principles in place from fictional stories, and between Star Wars, The Hunger Games and the like we get our ideas of government? Lord help us.
I dare say that MOST of us are way more impacted by our founders than by Star Wars, what's lacking is understanding of what that impact actually is because we haven't learned our history.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
I call it the Humpty Dumpty argument:
“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
Never answer an anonymous letter. - Yogi Berra
parent is right on. reinterpretation, rather than using the built in system for making changes, is a big indicator to someone's intentions and integrity
TBH, I don't even get why the TFA author's idea was necessary. The US Constitution was built out of a long series of debates, compromises, and not a little effort towards future-proofing (and let's be honest, idiot-proofing). That, and they included mechanisms to modify it as needed.
Sure, the process was arduous and it involved a lot of potential inclusions that would quite frankly scare many folks today. That said, once finalized and ratified, it's in place and should be treated as the original document. If you (or anyone) want it changed, then use the mechanisms included to do just that. We've managed to do so for a couple of centuries now without violating the thing, so why get all creative about it now?
The complaints: It's too hard to get 66% of Congress and 75% of the States to agree to change it, so politically it's just easier to get SCOTUS to allow the Federal government to do what is desired by "reinterpreting" the meaning you want into what was already written.
It's primarily a complaint by those in favor of Big Government; though many in favor of Small Government have turned to it as well in order to try to roll back the Progressive movements of the last 100 years. So both sides are now guilty of it.
There's a balance to be struck between the two positions; though I do favor the Originalism position more and give more weight to it. There's a lot to be learned from history and Originalism forces you to look back at history, learn from it, and apply it to today. The "Living Document" position does not, and sets up the repetition of history as a result since they ignore history, ignore lessons learned from history, and just try to do their own thing.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
No doubt humans are great at seeing and inventing patterns, its built in our brains at a deep level, for good and for ill. Certainly this ability plays a significant role in creativity. There's a missing bit here though, in that we build a pattern that is in some sense deeply meaningful. "Luke, I am your Uncle, " would have made as much sense and filled in pretty much all the similar spots, but doesn't have the same punch.
When the courts go to try and understand a new, real life situation against the background of the history of judicial judgement, there is a part of this that is just inspired. But there is a huge part that is research and questioning and trying to bring the pattern into a meaningful and consistent whole, something that is an expression of certain foundational opinions and reasoned principles. Although there is a connection here, the article seems to suggest that the pattern we devise is much more arbitrary than I think it really is. "Making up patterns where none exist" would imply that we can end up anywhere. I don't think that is the case.
Peace, or Not?
The secret history of Star Wars explains how the treatment Lucas proposed was a ripoff of the Samurai film Hidden Fortress with s/horses/hovercraft/ s/bumbling thieves/comical robots/ s/the crown's gold/Deathstar plans/, s/Protective General/Jedi Master/, etc. Afterwards Lucas added many elements to the movie drawing inspiration from Metropolis (see C3PO), Buck Rodgers (and other sci-fi serials, thus starting at the 4th episode as if you were catching the show mid way), Dune (Tatooine, but the spice was ultimately unneeded), etc. Many ideas were drawn from the set R2D2 was the name of a 2nd reel of film, and others were spouted during stream of consciousness sessions.
Many plot elements were made up on the fly, not pre-planned for twists. Luke and Leia weren't siblings (hence their kiss, which they have to explain away later). Darth Vader really did kill Luke's father, but his writers changed things as they neared the third film, Revenge of the Jedi (s/Revenge/Return/). George Lucas never had some grandiose script that was too demanding of the technology of the day such that he had to start the original trilogy at episode 4. He lucked into Star Wars with good cast chemistry, the existence of Industrial Light and Magic, and despite a lack loathing ow writing (hence the initial plagiarism) he stumbled into a classic "hero's journey" tale. He did achieve his initial intention to create a "cowboys in space" movie that "every 10 year old boy would love", and I put it to you that even if most of the details were changed, society was primed for such a movie.
Unfortunately you can't create luck on demand; Which explains episodes 1-3. Disney has some competent writers and directors that understand the technical feats play a second fiddle to the emotional roller coaster, so I'm glad the franchise passed to them. If only the copyright terms were shorter we could have tons of films with Star Wars settings, similar to how we have many films and TV shows incorporating folk fairy tales like Rapunzel, Sleeping Beauty, Snow White, etc. (the preexistence and collective nostalgia of which helped Disney attain his fortune).
Just like with Star Wars, when one thinks of Constitutional Laws one needs to understand their necessity due to the circumstances they were penned under.
they were voted into power, by folks who had a democratic, constitutionally chartered government. Anytime a fictional work needs to show the evil of people giving over to "the dark side", either out of fear, demoralizing shame, or for some other reason, "The Nazis" provide a good model to emulate. Authors, screenwriters, and other artists are who understand this history can be forgiven for copying the concept. The excesses of Communism, while often "evil" are not nearly as interesting, from a creative point of view.
The USA is only 4X older than me...perspective
You're correct - but the problem is that they made it too difficult to modify the Constitution as necessary to keep up. Over time, the federal government (and both political parties) have increasingly turned to creative interpretation rather than amendment when they want to do something that would likely run afoul of the original intent and text.
Consider the internal improvements bill of 1817 (also known as the Bonus Bill of 1817). It would have established a fund for a system of internal improvements (roads, canals, etc), and was passed by both houses of Congress. President James Madison ("the Father of the Constitution") liked the idea, but he vetoed it, because he stated that the Constitution didn't grant Congress the power to do that. He instead suggested that a constitutional amendment would be necessary.
So let me ask - what amendment allowed Congress to fund internal improvements? There isn't one. Do we do it anyway? Absolutely. So how does that work? Well, Madison's successor James Monroe came along and said "Well, the Constitution won't let you set up a SYSTEM of improvements, but you can instead fund them one at a time."
Over time, it's gotten to be more like that. Instead of passing more amendments, we instead use other measures and interpretations. The Federal Government can't set the legal drinking age to 21, but it sure can threaten to withhold highway funds from any state that doesn't meet that. Now, why is this necessarily a bad thing? In my mind, it's bad because it sets the precedent that the Constitution is something to be routed around, rather than to be obeyed, and leads quite naturally to some of the stuff like the civil liberties abuses we're seeing.
The supreme court has no constitutional authority to "interpret" the constitution(aka judicial review). That was a power it gave itself in Marbury v. Madison. This power is not in the constitution. If you look at English law the parliament was determined to be supreme. If judicial review(as it stands today) can be used to overturn any statute or policy, then the judicial branch is truly supreme, and the country is in the hands of people that hold lifetime appointments and do not have to adhere to the constitution they supposedly protect.
Rome replaced its monarchy with a Republic early on. But several centuries later ambitious generals took over the republic with a neo-monarchy called the Imperium.
This is the same man who proposed infiltrating and attacking any groups that dared think something of which his government didn't approve.
Although as a deeply-connected member of the Obama Administration, I'd have to agree that, at least when it comes to his own efforts at governance, "Human beings often see coherence and planned design when neither exists."
Anyone who's ever worked for George understands George himself was, however unconsciously, the model for both Darth Vader and the Emperor. Frightening but revealing that Sunstein would use this - a ruthless dictator who in truth has neither coherence nor a plan - as his template for constitutional government.
The reason Communists won WW2 because they were greater Evil. So evil that participated in pulling the wool over the UK and US societies. Keep in mind that during WW2 both sides portrayed themselves as good and tried to de-humanize the opponent.
There is a significant layer of WW2 secrets that are not declassified yet, and probably will never be declassified, on how Soviets managed to influence Western countries. They have convinced UK and US to support them with material support to begin with. Significant part of Western intelligence, as well as Axis countries intelligence, has been completely infiltrated by Russians.
On a basic level Communists won because they were crueler, merciless, nastier and meaner than their "civilized" opponent Germans.
In Communist Russia, if there was suspicion that individual was captured or switched sides, his entire family has been prosecuted, including taking away rationed food. If that is not convincing, check the basic statistics. 30 million Soviets died, and only a minority of those died because of Germans.
The greatest Satan's trick is that he managed to make you believe that he does not exist.
We interpret things routinely. You will read this and try to figure out what I tried to say, respond to it and I will then post that you misinterpreted everything I wrote and start a flame warâ¦
The same is true with law, the defendant and the claimant interpret the law to be in their favor, the judge adjudicates the case based on his interpretation of what the law says and what was demonstrated by each party.
Some parts of the law are straightforward, if after a violent incident between people there is a dead body, you can be sure it is homicide. Then you can argue whether it was manslaughter (an accident) or first degree murder (intentional), depending on who's paying you.
Now, the right to bear arms... It is not clear at all. Does it include automatic assault weapons? How about howitzers? Switchblades? Nuclear warheads? It does NOT enumerate what kind of arms and thus, it is quite open to interpretation.
Be very, very careful what you put into that head, because you will never, ever get it out. - Cardinal Wolsey
When our constitution is disregarded over and over? This article is just an excuse to completely disregard the US constitution. Our founding fathers "accidentally" make the 2nd amendment. It was just a coincidence.
Some parts of the law are straightforward, if after a violent incident between people there is a dead body, you can be sure it is homicide. Then you can argue whether it was manslaughter (an accident) or first degree murder (intentional), depending on who's paying you.
You have no idea what you are talking about. There are a variety of circumstances where killing can be lawful, depending upon the jurisdiction and the current law. Defense of self, defense of others, defense of property, sometimes even because they had it coming (that was more common in the old days then today, but I am reminded of an incident where a jury chose not a convict a father for killing a man that brutally raped his daughter). Add a state of war and you get more situations where death after a violent incident is neither manslaughter nor murder (such as shooting a military prisoner trying to escape, or even shooting someone for cowardice in the face of the enemy).
Depending upon the dictionary one uses, you might not even be able to claim a death caused by a violent incident is homicide: dictionaries differ as to whether or not a killing must be unlawful before it can be considered homicide (and with good reason: those that choose to define all killings as homicide are idiots).
Further, the death might not have been related to the violent incident, merely coincidental (perhaps the dead person accidentally ingested a toxin before getting in the fight).
It is hardly a straightforward matter, further complicated (as is all law) by ethical conflicts of interest on the part of the legal profession. They don't like it when people resolve matters themselves (instead of hiring lawyers over an extended period to fight it out), an ethical conflict of interest that leads to all kinds of interesting consequences (usually negative ones for the non-lawyers with the misfortune to find themselves involved in such incidents, and also negative for society). Add to that the ambiguity of natural language (which necessarily "opens things up" to interpretation), often contradictory precedents, and the normal politics one always finds in human affairs and determining legality (let alone justice) can be quite tricky.