Just started con law and I am already starting to hate life

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A. Nony Mouse
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Re: Just started con law and I am already starting to hate life

Postby A. Nony Mouse » Wed Jun 21, 2017 5:41 pm

Phil Brooks wrote:
Nebby wrote:On a related subject it pains me that people think of "rights" as opposed to "limits." The Bill of Rights are limitations on government authority, not rights vested in individuals.

Anyway, carry on...


Ugh, I'm so tired of this point being trotted out as some kind of "gotcha." There are two conceptions of rights: positive rights and negative rights. Positive rights are goods and services that the state is required to provide to individuals, while negative rights are things that the state is prohibited from doing to individuals.

Yes, the United States believes only in negative rights and therefore includes only negative rights in the constitution. But this does not mean that positive rights do not exist; in fact every other industrialized country has them.

I'm pretty sure this thread is about the US, though.

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Nebby
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Re: Just started con law and I am already starting to hate life

Postby Nebby » Wed Jun 21, 2017 5:46 pm

Phil Brooks wrote:
Nebby wrote:On a related subject it pains me that people think of "rights" as opposed to "limits." The Bill of Rights are limitations on government authority, not rights vested in individuals.

Anyway, carry on...


Ugh, I'm so tired of this point being trotted out as some kind of "gotcha." There are two conceptions of rights: positive rights and negative rights. Positive rights are goods and services that the state is required to provide to individuals, while negative rights are things that the state is prohibited from doing to individuals.

Yes, the United States believes only in negative rights and therefore includes only negative rights in the constitution. But this does not mean that positive rights do not exist; in fact every other industrialized country has them.

I know there are two conception of rights. What I don't know is how that is relevant to a discussion of the US constitution, which contains negative rights. Did you just get out of a philosophy 101 lecture and want to drop some knowledge?

Phil Brooks
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Re: Just started con law and I am already starting to hate life

Postby Phil Brooks » Wed Jun 21, 2017 6:50 pm

Nebby wrote:
Phil Brooks wrote:
Nebby wrote:On a related subject it pains me that people think of "rights" as opposed to "limits." The Bill of Rights are limitations on government authority, not rights vested in individuals.

Anyway, carry on...


Ugh, I'm so tired of this point being trotted out as some kind of "gotcha." There are two conceptions of rights: positive rights and negative rights. Positive rights are goods and services that the state is required to provide to individuals, while negative rights are things that the state is prohibited from doing to individuals.

Yes, the United States believes only in negative rights and therefore includes only negative rights in the constitution. But this does not mean that positive rights do not exist; in fact every other industrialized country has them.

I know there are two conception of rights. What I don't know is how that is relevant to a discussion of the US constitution, which contains negative rights. Did you just get out of a philosophy 101 lecture and want to drop some knowledge?


It's relevant context to your comment, which said, "The Bill of Rights are limitations on government authority, not rights vested in individuals," and therefore implied that the only rights that exist (and therefore the only rights contained in the Bill of Rights) are limitations on government authority i.e. negative rights.

cavalier1138
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Re: Just started con law and I am already starting to hate life

Postby cavalier1138 » Wed Jun 21, 2017 7:24 pm

Phil Brooks wrote:
Nebby wrote:
Phil Brooks wrote:
Nebby wrote:On a related subject it pains me that people think of "rights" as opposed to "limits." The Bill of Rights are limitations on government authority, not rights vested in individuals.

Anyway, carry on...


Ugh, I'm so tired of this point being trotted out as some kind of "gotcha." There are two conceptions of rights: positive rights and negative rights. Positive rights are goods and services that the state is required to provide to individuals, while negative rights are things that the state is prohibited from doing to individuals.

Yes, the United States believes only in negative rights and therefore includes only negative rights in the constitution. But this does not mean that positive rights do not exist; in fact every other industrialized country has them.

I know there are two conception of rights. What I don't know is how that is relevant to a discussion of the US constitution, which contains negative rights. Did you just get out of a philosophy 101 lecture and want to drop some knowledge?


It's relevant context to your comment, which said, "The Bill of Rights are limitations on government authority, not rights vested in individuals," and therefore implied that the only rights that exist (and therefore the only rights contained in the Bill of Rights) are limitations on government authority i.e. negative rights.


Actually, I'm pretty sure that Nebby just pointed out that the rights in the Bill of Rights are all negative rights (or "limitations", take your pick). No one was discussing the Bill of Rights as the exclusive container of all human rights that anyone could ever enumerate.

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Nebby
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Re: Just started con law and I am already starting to hate life

Postby Nebby » Wed Jun 21, 2017 7:36 pm

cavalier1138 wrote:
Phil Brooks wrote:
Nebby wrote:
Phil Brooks wrote:
Nebby wrote:On a related subject it pains me that people think of "rights" as opposed to "limits." The Bill of Rights are limitations on government authority, not rights vested in individuals.

Anyway, carry on...


Ugh, I'm so tired of this point being trotted out as some kind of "gotcha." There are two conceptions of rights: positive rights and negative rights. Positive rights are goods and services that the state is required to provide to individuals, while negative rights are things that the state is prohibited from doing to individuals.

Yes, the United States believes only in negative rights and therefore includes only negative rights in the constitution. But this does not mean that positive rights do not exist; in fact every other industrialized country has them.

I know there are two conception of rights. What I don't know is how that is relevant to a discussion of the US constitution, which contains negative rights. Did you just get out of a philosophy 101 lecture and want to drop some knowledge?


It's relevant context to your comment, which said, "The Bill of Rights are limitations on government authority, not rights vested in individuals," and therefore implied that the only rights that exist (and therefore the only rights contained in the Bill of Rights) are limitations on government authority i.e. negative rights.


Actually, I'm pretty sure that Nebby just pointed out that the rights in the Bill of Rights are all negative rights (or "limitations", take your pick). No one was discussing the Bill of Rights as the exclusive container of all human rights that anyone could ever enumerate.

Yes.

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landshoes
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Re: Just started con law and I am already starting to hate life

Postby landshoes » Wed Jun 21, 2017 8:34 pm

god you guys really just bought renqhuist's "no positive rights" bullshit hook line and sinker, didn't you

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Re: Just started con law and I am already starting to hate life

Postby LurkerTurnedMember » Wed Jun 21, 2017 8:48 pm

rpupkin wrote:
jasoncohen wrote:before starting con law my presidency, I was actually excited because I like to know my constitutional rights. I want to know if I give someone people of color, women, and the poor the middle finger, what can happen to me.

But no, it's not about that at all. it's US history and US government all over again. These are 2 subjects that I hate with a passion. I dont care what the congress does. I dont know who thomas jefferson was. I know it's ridiculous but I honestly don't know. I dont know anything about history or government. dont care, dont wanna know.

(Donald Trump)

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Nebby
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Re: Just started con law and I am already starting to hate life

Postby Nebby » Wed Jun 21, 2017 11:18 pm

landshoes wrote:god you guys really just bought renqhuist's "no positive rights" bullshit hook line and sinker, didn't you

Tbf Due Process is a hybrid

joebudden
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Re: Just started con law and I am already starting to hate life

Postby joebudden » Thu Jul 20, 2017 12:45 am

I'm actually surprised you're learning about Thomas Jefferson in Con Law.

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OutCold
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Re: consitutional law the worst class

Postby OutCold » Thu Jul 20, 2017 12:40 pm

Hikikomorist wrote:Inspires the most/worst class participation, too.

This comment was prescient given the discussion the thread turned into.

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Re: Just started con law and I am already starting to hate life

Postby First Offense » Mon Jul 24, 2017 5:19 pm

joebudden wrote:I'm actually surprised you're learning about Thomas Jefferson in Con Law.

Kind of a central figure to Marbury v. Madison.

9xSound
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Re: Just started con law and I am already starting to hate life

Postby 9xSound » Sat Aug 05, 2017 9:20 pm

Your clue to any Con Law exam: Attack. The. Law. Don't give the government a pass. Con law is not about defending the dumbassed law or the government conduct. It's about taking them down, using the Constitution. Get your arms around this before you sit the exam. The government doesn't need an apologist in con law. Your goal is to use the Constitution to find the law or the government conduct unconstitutional.

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A. Nony Mouse
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Re: Just started con law and I am already starting to hate life

Postby A. Nony Mouse » Sat Aug 05, 2017 9:39 pm

9xSound wrote:Your clue to any Con Law exam: Attack. The. Law. Don't give the government a pass. Con law is not about defending the dumbassed law or the government conduct. It's about taking them down, using the Constitution. Get your arms around this before you sit the exam. The government doesn't need an apologist in con law. Your goal is to use the Constitution to find the law or the government conduct unconstitutional.

Not if that's not how your prof teaches it.

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Nebby
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Re: Just started con law and I am already starting to hate life

Postby Nebby » Sat Aug 05, 2017 9:41 pm

9xSound wrote:Your clue to any Con Law exam: Attack. The. Law. Don't give the government a pass. Con law is not about defending the dumbassed law or the government conduct. It's about taking them down, using the Constitution. Get your arms around this before you sit the exam. The government doesn't need an apologist in con law. Your goal is to use the Constitution to find the law or the government conduct unconstitutional.

What

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rpupkin
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Re: Just started con law and I am already starting to hate life

Postby rpupkin » Mon Aug 07, 2017 2:09 pm

9xSound wrote:Your clue to any Con Law exam: Attack. The. Law. Don't give the government a pass. Con law is not about defending the dumbassed law or the government conduct. It's about taking them down, using the Constitution. Get your arms around this before you sit the exam. The government doesn't need an apologist in con law. Your goal is to use the Constitution to find the law or the government conduct unconstitutional.

That's like saying your goal during a Contracts exam is to find that a contract has been breached. Your advice is not good.

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Re: Just started con law and I am already starting to hate life

Postby 9xSound » Mon Aug 07, 2017 5:58 pm

rpupkin wrote:
9xSound wrote:Your clue to any Con Law exam: Attack. The. Law. Don't give the government a pass. Con law is not about defending the dumbassed law or the government conduct. It's about taking them down, using the Constitution. Get your arms around this before you sit the exam. The government doesn't need an apologist in con law. Your goal is to use the Constitution to find the law or the government conduct unconstitutional.

That's like saying your goal during a Contracts exam is to find that a contract has been breached. Your advice is not good.


Wasn't going to reply, but what the heck. The OP expressed some frustration with con law. I gave a rule of thumb, a broad approach, submitted merely for consideration. Free of charge. To claim that the goal of a contracts exam is to find that a K has been breached is not analogous to my post at all. A better analogy, if imperfect, is that performance contract exams test contracts that have been breached. It's not your goal to find that it has been breached. Your goal is to hold the parties to their promises — by analyzing the parties' conduct. But I cannot recall even once seeing a performance essay in contracts where all of the parties did exactly what the contract called upon them to do from start to finish. What's to test in that sitch? They test breach. They don't test perfected contracts.

Similarly, con law exams don't typically test well-written, constitutional laws, or perfectly constitutional government conduct. I've been an attorney long enough to know this. You can find the oddball exception to this if you want, but it would be an anomaly. Con law exams test the students' ability to see and analyze bad law and unconstitutional conduct using the Constitution. Not all students grasp this. And while some professors may throw some curve balls now and then, I stand by my approach. One must of course respond to whatever the facts are, but the rule of thumb with any con law exam is that you should be looking for what's wrong with the law and why it's unconstitutional. If it isn't unconstitutional, so be it. But the starting point on con law exams is that your mission is to attack the law.

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rpupkin
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Re: Just started con law and I am already starting to hate life

Postby rpupkin » Mon Aug 07, 2017 6:29 pm

9xSound wrote:Similarly, con law exams don't typically test well-written, constitutional laws, or perfectly constitutional government conduct. I've been an attorney long enough to know this. You can find the oddball exception to this if you want, but it would be an anomaly. Con law exams test the students' ability to see and analyze bad law and unconstitutional conduct using the Constitution. Not all students grasp this. And while some professors may throw some curve balls now and then, I stand by my approach. One must of course respond to whatever the facts are, but the rule of thumb with any con law exam is that you should be looking for what's wrong with the law and why it's unconstitutional. If it isn't unconstitutional, so be it. But the starting point on con law exams is that your mission is to attack the law.

You've set this up in strange way. You are right, of course, that the typical constitutional law exam does not contain a hypothetical with "perfectly constitutional government conduct." But the typical constitutional law exam also does not contain a hypothetical with plainly unconstitutional government conduct. Typical issue-spotter law exams—in all subjects—include messy hypotheticals with hard questions.

Yes, a student answering a con-law exam question should make the arguments for why the law (or government conduct) is unconstitutional. But the answer won't be a good one unless the student also makes the arguments for why the government action is constitutional. The point is to show that you understand the law well enough to explain why the question is hard. You need to argue from the perspective of the citizen and the perspective of the government. Approaching the question from only one side is a recipe for a median grade, if not worse.

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Re: Just started con law and I am already starting to hate life

Postby 9xSound » Mon Aug 07, 2017 11:41 pm

rpupkin wrote:But the typical constitutional law exam also does not contain a hypothetical with plainly unconstitutional government conduct. Typical issue-spotter law exams—in all subjects—include messy hypotheticals with hard questions.

Yes, a student answering a con-law exam question should make the arguments for why the law (or government conduct) is unconstitutional. But the answer won't be a good one unless the student also makes the arguments for why the government action is constitutional. The point is to show that you understand the law well enough to explain why the question is hard. You need to argue from the perspective of the citizen and the perspective of the government. Approaching the question from only one side is a recipe for a median grade, if not worse.


I don't think we have a real disagreement with each other. Of course you're right in what you're saying. I'm not arguing that one should approach a con law or any other problem from only one side. God, no. You can't do that in law school or on the bar. Con law problems invariably feature a law or conduct that dances around the margins of constitutionality, usually having one foot within the limits and one foot over the line. The student needs to be able to see and analyze what's right with the law — which often are the elements of substantial government interest and directly advancing that interest. These are usually pretty obvious. Analyze them for what they are. Students who struggle with con law, however, often drop the ball in their analysis of the element of narrow tailoring. And if anything is wrong with the way a law is written on a con law or bar exam, this is where you're going to find it. It's also where most of the money is in the analysis. Just as contracts is about holding people to their promises and PR is about holding attorneys to ethical standards, con law is about holding the government accountable to the Constitution. You're policing the law. To any student grappling with what they're supposed to do on a con law exam, analyze the substantive words of the law under the narrow tailoring element. Attack those words one at a time: what they mean, don't mean, and especially what they could mean.

Just food for thought. And of course, find out what your professor expects. That's a lot more important than advice from the internet.




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