captain said:
Your joking right... Judges do it all the time.. If you do some checking with attorneys, at least the ones I have spoken to our universities don't teach law or the constitution anymore they focus on case precedent... Is that correct?
Ok, I'll give you the answer, another answer, and my limited knowledge of the issue in this case. Although I don't practice constitutional law, I've been a lawyer for over seventeen years, so I have a bit of an idea of how the system works.
The answer is that, yes, lawyers and judges look to laws and cases. Then they look to prior court opinions that have interpreted the law. Usually, if the opinion is from a higher court, lawyers and judges must follow the opinion. So, when the Supreme Court of the United States issues an opinion, everyone looks to it because the Court is usually interpreting the Constitution, or a federal law, or disputes between citizens of different states.
The other answer is that, you're right. Judges and lawyers "distinguish" cases based on their particular facts in attempt to argue, or reason, that the law or prior case does not apply to the particular facts of their case. Generally, however, courts and lawyers follow precedent. Sometimes, you can argue directly against an established law or prior case, if you believe that there is a good faith basis to argue that the law should be changed. That's how we ended up with laws like the Civil Rights Act of 1964. And that's how the law evolves.
Without reading the briefs in this case, the issue that the Supreme Court must address is the interplay between the statute and the First Amendment. So, the constitutional question for the Court is whether the Constitution protects lies, because the First Amendment says that "Congress shall make no law ... abridging the freedom of speech ...." If lies are protected by the First Amendment, then the statute is unconstitutional. So, this opinion will have far-reaching effects if the Court decides that lies are protected. They will certainly recognize the service of our military, and the honor bestowed upon those of unquestionable valor, and they may ultimately decide that the speech at issue--that is, a lie about service and valor in the military--deserves less protection, and that the statute is narrowly tailored to meet the government's interest. In that case, they'll find the statute constitutional.
Unfortunately, sometimes tough cases make bad law. If they decide that the First Amendment sometimes protects lies, what are the limits? The Supreme Court rarely decides limits, because each case brings new factual issues, and they typically leave those issues for the lower courts to decide. If they decide the First Amendment never protects lies, then you'll likely see many new laws that make lies--beyond those to governmental officials or judges or police officers--a crime. Like telling your employer you graduated from an Ivy League college, when it was a second-tier school, or telling the newspaper that you were at Ground Zero and are now destitute, when you were nowhere near that hallowed ground, or ... [insert your example here.]
Finally, law schools have a mandatory group of courses that they are required to teach, which usually take up at least the first of three years. The include contract law, constitutional law, property law, torts, federal procedure, criminal law and procedure, and legal research and writing. So, you learn by understanding the law, and how courts have interpreted the laws over time.
Sorry for the long explanation, but hope it helps. And for what it's worth, I believe that Medal of Honor, and other medals of valor, deserve protection, so that lies about being awarded them should receive some punishment.
but even those and $5 will only get me a Big Mac at McDonalds.
