It is likely I will have a meeting tomorrow afternoon that will prohibit me from participating in this week's iteration of TLG. However, I very much would like to play. Normally this would not be a problem, as I would declare myself eligible and then, taking advantage of the constitutional provision permitting withdrawal until the moment of the drawing, simply plan accordingly. But this tentative meeting is at a large, bureaucratic international organization and sometimes one only gets a final commitment (positive or negative) from people at 10am on the morning of the event.
I am a good TLG Participant/citizen of the world, and I want to comply with my constitutional duties. May I in good faith issue a conditional statement of participation contingent upon the non-occurrence of one specific event whose scheduling is out of my hands? Or are my constitutional options delimited by the text of Article I?
(The background question is, of course, whether or not we determine that the constitution of TLG permits advisory opinions. I assume without deciding that it does.)
Thursday, February 8, 2007
Constitutional Question
Posted by lex at 9:40 AM
Labels: Constitution, debate, Friday Edition, good commenting, Not Awesome, Procedures
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13 comments:
Here is my understanding, as per a reading of §§ 1.2(a)-1.2(c). Participation does not appear to allow for the possibility of conditional participation. Scanning the history and traditions of TLG, it appears that the founders felt strongly that a commitment to participate necessarily subjected other obligations (including those to world institutions). TLG, in the minds of the founding fathers, was a priority whose importance was not to be diminished.
However, §1.2(c)indicated that the founders anticipated that not all impermissible withdrawals would rise to the level of seriousness that would warrant removal from TLG or ostracism. Thus, punishment for 'failure to participate after expressing intent to do so, and not properly or improperly expressing revocation of intent' was broadly defined to allow the people a voice in determining the seriousness of a particular incident. Included in §1.2(c), was §1.2(c)(iv), the so-called "torment eating clause." The clause retains in the collective TLG a degree of discretion allowing the torment eating to be "determined by a tribunal made up of all interested participants exclusive of the offending participant." Thus, the Constitution suggests that externally conditioned failures may place said participant within the confines of §1.2(c)(iv), thus subjecting said participant to a punishment eating, which may reflect the reasoned judgment of the tribunal as to the correlation between the seriousness of the failure to properly revoke one's participation in a timely fashion and the terribleness of the torment eating. I imaging that the compassion of the bench in this instance, would not produce a cruel and unusual torment eating (although this would, in fact, be constitutionally permissible).
Quod scripsi, scripsi.
The constitution certainly permits variances for such pre-existing conditions such as chronic vegetarianism or peanut allergy. However, it would seem clear to me that conditional committments are not permitted for instances of preference. As the lunch game seeks to eliminate choice, the question then becomes is this something you have to do, or choose to do?
By the way, I believe it was the intent of the framers that this question be resolved in accordance with Article II, Section 2.2(a) "For all other resolution of ambiguity or minor dispute, simple majority of participants shall suffice for resolution of the debate." But I would be willing to hear arguments otherwise. I would like to get a little more information about you obligation before making my determination, but you may be required to take your chances in this case and bear the possible consequences, should any arise.
To be clear, I believe that as my comrade Pete pointed out, this is subject to Article I, Section 1.2(c), just that the ultimate determination of a majority would be binding in keeping with the provisions of Article II.
That majority of "participants" is by my reading to be taken as a majority of participants in that particular expression of the game. Thus, such a determination of the validity of your course of conduct would only be made at lunch tomorrow, should a challenge arise.
-Cheers
I agree with both of your readings of the Constitutional text. But must we not also look to the intent of the framers.
To wit, the purpose of TLG is to promote risk-taking and games of chance in gustatory matters. (See TLG Preamble) Thus, as my conditional participation would be conditioned not upon any outcome of the Drawing, it seems to be in line with that basic policy. By specifying the condition which determines my ability to participate, I would ensure that I complied with the random chance essence of the game.
Additionally, I worry about how this choice will affect policy. This creates a strong disincentive. I could simply declare myself ineligible and run no risk. Or I could declare myself eligible and run the risk of punitive sanctions. Clearly, the former is the smarter choice. But it unnecessarily constrains participation.
This seems to me closer to vegetarianism than peanut allgeries. As we all know, some things people choose and some things are biological imperatives (see Ted Haggard). Vegetarianism is a choice and thus seems technically to fall outside the rules of the lunch game but is permitted as an ex ante condition. Does my case differ because it is a singular event? Or because it is not food-based (which actually seems to bring it closer in line with lunch game policy than a choice to eschew duck feet simply because of ducks)?
You speak of intent of the framers, however there is substantial historical evidence on this issue. In fact, there were numerous drafts of the preamble prior to the one to which you refer. The draft preamble of 2/3/07 (See "Constitutional Convention: Preamble Debate" post) emphasizes adherence to the principles of the lunch game "for good or ill." There is no loftier goal for participation in the lunch game, than to honor the lunch game. To the extent that participation in the lunch game is entirely voluntarily, I question how much of the integrity of the game itself can be preserved when the participants are expected to kowtow to "a large, bureaucratic international organization" that can't organize a meeting until the day of, or Justin Timberlake.
With respect to the question of intent, it was the intent of framer Eric B. that "for all amendments to the constitution, we use one of the following (each requiring 3/4 majority):
1) Body Mass
2) Chest hair (scale of 5, most to least)
3) This one is complicated, but has the most promise, so try to get through it:
a) Separate everyone into groups of the year of their birth.
b) Each such group should, a tie being a "yes," no matter what the issue is.
c) The group is given 3 votes, plus (the remainder of the year of their birth + the last lunch number selected when divided by 7).
d) All different group votes are added together to see if it reaches 3/4 of the majority." (see comments to the "Preamble Debate" post mentioned earlier.)
For this reason, I would strongly encourage a textualist rather than intentionalist interpretation wherever possible.
As Justice Joseph Story pointed out in his "Commentaries," the preamble of a Constitution does not confer any substantive rights or authority. While it may be helpful to reference the Preamble in examining general questions regarding the nature of Constitutional provisions or the extent of their application, its force is by no means dispositive.
You ask us to read a meaning into the plain text of the Constitution, that it is entirely unclear the Founders intended. The description of a vegetarianism exception indicates that the Founders were clearly aware of the need for exceptions and willing to make them when they saw fit. Against this background, the omission of a so-called "conditional participation" clearly indicates that the founders intended for no such exception to exist.
As with any policy that one disagrees with in a democratic society, you may convince your fellow participants and pursue the appropriate channels for change. The Constitution, however, embodies a policy choice made at the Founding of TLG. The founders believed that this policy was sound. We are in no position to doubt their wisdom.
Quod Scripsi, scripsi.
Pete & Derek make good constitutional points, to which there is little I can add right now.
In the short time I have for commenting at the moment, though, let me say that I am worried about the policy implications of allowing such actions.
In these early days of TLG, the issue we've found hardest to deal with, I think, is the enforcement of plainly stated LG rules. We've had Jen threaten a clearly unconstitutional veto of Sean's participation in TLG; we've had Nadya request a clearly unconstitutional condition on TLG locations for tomorrow's gameday; and we've had Alex just be all-round unconstitutional-minded.
If we don't take a hold of what is plainly bedrock of TLG law, then TLG will lose all meaning.
As much as I hate the idea of Lex not being able to come, I further fear TLG's constitution in shambles.
Let me remind everyone of the history of the United States of America, a nation as rich in history as I am in body hair.
There was an original constitution, that some of you may know as the Articles of Confederation. This was drafted without substantial experience in the fine and exquisite art of nation-building. Sooner, rather than later, the underpinnings of this fragile democracy proved weak, and stupid, and ugly.
Rather than adhering to a completely inadequate constitution (see Iraq, Feldman), a new constitution, a capitalized Constitution, was born. Let this serve as a reminder to all of you, that a) I'm super good at history, and b) if the Constitution proves stupid and ugly, we can make one, and only one new and different constitution.
That may well be, hairy historian, but first the Constitution must actually be tested and prove to be inadequate for TLG's goals. We have not reached such a point yet.
I remind the bloggers of Justice Jackson's famous caveat on too strictly construing text to the denial of practical realities: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context."
I also point out that, while some of the other bloggers have made many excellent points about our Constitution, few of them--except perhaps the rather pedantic reliance on the Latin canon of expressio unius-- have addressed the precise question at issue: can an intent to participate be communicated subject to the non-occurrence of a specific condition, whose occurrence is controlled by a third party and whose possibility is properly communicated prior to the Drawing?
I find nothing impractical about one's deciding by 11pm tonight (LIVE DRAWING) whether or not one is going to lunch tomorrow. If you have other obligations, it seems eminently practical to go to that, and join us for the next lunch game, and to express your intentions as such. Alternatively, it strikes me as not impractical to communicate to your Belgian and Lithuanian friends (I am assuming) that you have other plans, and can't wait until tomorrow to see if you can go to their meeting. Ultimately I must find that you are free to join us or not, as you choose, and would hold you to your decision, which is...
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