There's been a concerted effort over the last few years by liberals to define "judicial activism" such that it has no real meaning: it is only defined by your interpretive perspective, or worse, simply by the difference between your own opinion and another.
"Judicial activism" means, to me and most people I run into, to ignore the law and substitute your view of what the law should be. It is to engage in the legislative function, not only in striking down constitutional laws or upholding unconstitutional ones, but in crafting the law to reach particular extra-constitutional outcomes. It has nothing to do with the relationship of one opinion to my own, but the relationship of the case to the law and the purpose of the court to determine not what the law should be, but what it is.
I am going through Justice Stephen Breyer's book Active Liberty. This book is astonishing in that Breyer actually and unabashedly makes the argument for why he sets aside what the Constitution says, in both text and intent, to serve what is to him a greater good. His basic premise is that the purpose of the Constitution is to promote certain ideals, and that rulings of constitutionality should heavily weigh that purpose against what the Constitution actually says.
He really does this. I am not yanking your chain here.
For example, Breyer defends his support of campaign finance reform that restricts the freedom of speech by saying that in doing so, he is supporting the "purpose" of the First Amendment to encourage a national discussion; that by limiting the speech of wealthy people who normally dominate the discussion, he promotes active participation in that discussion by those who might not have the means to purchase such opportunities to speak.
There can be no doubt that Breyer is explicitly pushing for the restriction of political speech, which violates both the letter and the clear intent of the Constitution. He does not really question this; he simply says the restriction is in line with the Constitution's purpose.
He contends that restricting speech in this way is justified because it increases equality of speech for everyone else. Nevermind that such "equality" was not an obvious purpose of the First Amendment or the Constitution. Nevermind that there's no serious reason to believe that equality is enhanced, or discussion encouraged, by these restrictions. He believes that will be the outcome, and so that is how our justice-legislator rules.
The oddest part about Breyer's book is that he actually believes he is following a course of "judicial modesty." He thinks that by refusing to follow the law, by substituting for the law his own enlightened views of how well a case fits in with the purpose of the law in reaching particular outcomes, he is being ... modest. I find it to be precisely the opposite.
Breyer sets aside the text and intent of the Constitution in order to push his vision of its purpose, trying to produce a particular outcome he favors, that he believes is more in line with that purpose.
Call this what you want. I call it judicial activism. I call it ignoring the Constitution. I call it injustice. I call it hatred of the rule of law.
President Obama calls it empathy.
Cross-posted on <pudge/*>.
Posted by pudge at May 14, 2009 11:39 AM | Email ThisAnd part of the problem is that he looks TOO OFTEN at the ends; it's not just that they don't justify the means, it's that they should not be taken into account nearly as much as he does. Ends are for legislators. The ends for courts should center on whether the law has been applied.
(I know it's not that simple, which is why we have stare decisis in the first place, but Breyer tends to consider the ends far more often than a "modest" judge should.)
You should stop speaking to other people's intentions or hatreds because it's a petty game. I know I've hit you hard on this and you may not feel I have credibility, but "liar" and "hatred/rule/law" are simple-minded ad hominem attacks of decent people.
Senator McCain was responsible for the legislation you spend some time focusing on. He is an honorable man and a great American hero. Yet, he must have been happy when his law was found to be constitutional. I can only conclude from your statements that you believe Senator McCain hates the rule of law. In that case, why did you vote for him?
As a matter of fact I disagree with your assertion that "purpose" (synonymous with "intent") is unable to be brought into the judicial process. I have no interest in discussing the second amendment in any detail, but Court after Court has affirmed the purpose was to provide basic arms -- not allow for the personal ownership of tanks and nuclear weapons which are clearly "arms." If you believe we need another amendment to prevent people from owning chain guns and missile launchers then you're not just outside of the political mainstream, you're far removed from the judicial mainstream and I cannot take your opinions on matters seriously. I have no idea if you feel that way, but some people like Harry Browne do/did and we wonder why people think l/Libertarians come off as ridiculous so frequently?
Your definition of activist judge is indeed outside of the mainstream. When a bill is passed through the legislature and signed by the president, the constitutionality of that law can be challenged. The Court upholding its constitutionality is not similar to in effect crafting new legislation from the bench. The two other branches provide checks on this matter. That is hardly an example of a judge that cannot be controlled.
Posted by: John Jensen on May 14, 2009 01:11 PMHowever,in the 4th paragraph is where we diverge; it is the purpose of the legislative branch to legislate and the judicial branch to adjudicate. When there is a badly written law, it should go back to the legislature for amendment; the intent should not be 'divined' by the judicial branch and an 'intent' decision rendered. When it is 'divined', I call it 'judicial activism'. Simple as that, though there are some gray areas.
Posted by: swatter on May 14, 2009 01:27 PMOn one hand, judges that strike down laws created by the legislative process can be labeled activist - because they're interfering with the law making process of the legislature.
In this example, Breyer supported leaving the law in place - showing arguably judicial restraint not activism.
But, his reasons are arguably not found in the literal reading of the constitution - so his action is labeled not restraint but activism.
Perhaps this is why there isn't a pure definition that everyone agrees with - one person's activism is the other's restraint, and vice versa.
I'd not be too quick to call something that is contrary to our constitution an injustice. Originally our constitution wasn't counting everyone as a whole person - constitutional perhaps, but clearly an injustice too.
Posted by: BA on May 14, 2009 01:29 PMThis "hatred of the rule of law" is a meme you apply to Supreme Court justices, a large majority of the Senate and Congress, and our President.
Yep.
The only person who can determine whether Souter "hates" the rules of law is Souter himself.
I did not mention Souter. And no, I can determine it by their words: they literally choose the rule of men over the rule of law.
Senator McCain was responsible for the legislation you spend some time focusing on.
Yes, and I voted for him, and this law was not to his credit.
I can only conclude from your statements that you believe Senator McCain hates the rule of law.
Then you're not paying attention. I do not speak of hatred of the rule of law in terms of specific decisions, but in philosophical approach.
As a matter of fact I disagree with your assertion that "purpose" (synonymous with "intent") is unable to be brought into the judicial process.
You're wrong on both counts. First, I never made such an assertion, and second, purpose is not synonymous with intent. The intent of the First Amendment is to proscribe the government from abridging the freedom of speech. The purpose -- according to Stevens -- is to encourage "democratic participation."
They are certainly, as I use them here, related and similar. As one critic noted, "Active Liberty ... advocates interpreting the document in light of its overarching goal of fostering democratic participation. What is this but a form of originalism, albeit at a higher level of generality than the originalism espoused by Justice Scalia?" It is this "higher level of generality" that is the point.
I have no interest in discussing the second amendment in any detail, but Court after Court has affirmed the purpose was to provide basic arms -- not allow for the personal ownership of tanks and nuclear weapons which are clearly "arms."
Sure. Scalia approaches this by asking what arms meant to the people at the time who wrote and ratified the Second Amendment (and offhand, I don't know what his response would be). Stevens, however, would ask what the PURPOSE of the Second Amendment was: that is, was it to defend the nation from foreign invaders? To provide for defense of the home? To hunt?
Both sets of questions are valid (a point I agree with Stevens on). Stevens, however, would say that the purpose is more important than the intent, while Scalia would rightly say, if the law does not match the purpose any longer, then amend the law; until then, the law is what the law is. Scalia would say that the job of the legislature, not the court, is to determine whether the written law fits whatever purposes the people desire.
This is how Stevens comes down actually ruling we no longer have a right to keep and bear arms, because the purpose, as he sees it, is no longer served by the text or intent of the Second Amendment. This is not judicial modesty, this is tyranny.
Your definition of activist judge is indeed outside of the mainstream.
No, it's not.
When a bill is passed through the legislature and signed by the president, the constitutionality of that law can be challenged. The Court upholding its constitutionality is not similar to in effect crafting new legislation from the bench.
I didn't say it was. I explicitly distinguished between those things in my second paragraph.
The two other branches provide checks on this matter.
That is no excuse.
That is hardly an example of a judge that cannot be controlled.
I didn't say anything about people being uncontrollable.
The Mercatus Center of George Mason University has published a study, "Freedom in the 50 States: Index of Personal and Economic Freedom", that is comprehensive, timely and informative. Washington is ranked 41st in economic freedom and 35th in personal freedom. The study's profile of Washington reads:
"Washington scores #41 on economic freedoms,
#35 on personal freedoms, and #44 overall. While
taxes are fairly low, spending is higher than average, and accordingly government debt is quite high. The government payroll is much larger than average. For a liberal state, gun laws are quite reasonable. Alcohol is fairly tightly controlled, with taxes on spirits the highest in the country by far (effectively $21.15 per gallon). Marijuana laws are a bit better than average,
but making high-level possession and low-level cultivation misdemeanors and low-level possession a civil offense would help further. Washington does not authorize sobriety checkpoints. Educational regulation is absurdly tight, with private schools needing state approval and under certain conditions teacher licensing, and home schoolers needing to meet teacher qualifications, annual standardized testing, and extensive record keeping rules, along with other requirements. Land-use planning is becoming more centralized. Labor and health insurance laws are poor. Asset forfeiture has been reformed, but eminent
domain has not. Cigarette taxes are high, and
smoking bans are extensive."
http://www.mercatus.org/PublicationDetails.aspx?id=26154
Washington ranks in the top quintile for overall oppression. The complete study can be downloaded in the PDF format.
Posted by: Paddy on May 14, 2009 01:50 PMIn this example, Breyer supported leaving the law in place - showing arguably judicial restraint not activism.
Yes, that is how he sees it. However, in order for him to do so, he has to divine a "higher purpose" of the Constitution, and judge by this, not by the actual Constitution. This is not modesty. This is envisioning himself as Solomon, passing down wise judgments to the masses. This is extraordinary arrogance.
Regardless of whether you call something activist or not, it remains that Breyer explicitly sets aside the clear meaning of the Constitution when he thinks some unlegislated higher purpose calls for him to do so. This is wrong, no matter what you call it.
I'd not be too quick to call something that is contrary to our constitution an injustice.
That's not quite what I was doing, though I realize I didn't spell it out. What I am saying is that the way our rights as citizens are protected, primarily, is through the law. We set up the law, we force the law to conform to certain principles, and we rely on that law. That doesn't mean the law is just, but it does mean that having a philosophy that sets it aside whenever you think the law doesn't quite "work" the way you think it should for the sake of democratic participation is unjust.
Consider the Lily Ledbetter case. Did she get justice? No, she didn't. She was wronged, and didn't get what should have been coming to her. However, what if we told her employer, "yeah, we know the law said you did nothing wrong, and that you acted within the law with the presumption that if you did so you would be protected, but ... well, sorry. You're gonna have to pay for that."
That is clearly injustice, too. The difference is that in the Ledbetter case as decided, the law itself was unjust, and could be fixed (and was). This is, while tragic for her, far less tragic than a situation where no one can trust what the law says when it is clearly constitutional (as this law was), for fear that it might be arbitrarily overturned by a court.
Indeed, it is quite possible that a company in such a situation, had the law been written as it is now (since the Democrats amended it), might not have acted the way it did.
We rely on what the law says, and in this way and many others we expect to be protected by it. So this is what I am saying there: rule of men is not justice. Rule of law is. That doesn't mean each person will always get justice under the rule of law.
Originally our constitution wasn't counting everyone as a whole person - constitutional perhaps, but clearly an injustice too.
Absolutely. And it also would have been an injustice to summarily overturn those parts of the Constitution.
I agree with everything you've written. The intent or purpose of constitutional provisions or parts of the US code shouldn't be guessed or "divined."
However, I am not convinced that the first amendment doesn't mean to guarantee an equality of free speech or to encourage a national discussion. I do not think it is unfounded to suggest that an extreme amount of money and influence will crowd out speech in a way that wasn't fathomed by the founders.
In this case, the intent and purpose of our constitution must surely be investigated just as the second amendment surely doesn't give me the right to own a missile launcher. That was not the purpose of that amendment.
I think it is illogical, and pudge would agree, to make your single point of understanding the constitution the document itself. There is far more reading required to demonstrate the intent and purpose of those laws.
The question should be whether the purpose suggested is constitutionally sound, not whether the intent was used over the letter. As such, saying the first amendment guarantees free chocolate is certainly not supported by any source. On the other hand, most judicial thinkers believe there is a right to privacy in constitution even though that word never appears in the document. This right was effectively established as precedence in Griswold v. Connecticut and Roe v. Wade. The due process clause in the 14th amendment is widely interpreted to extend rights to individuals that are implicit with the concept of "liberty."
I think it is very clear that you need to talk about the merits of each individual purpose or interpretation, and not act as if the courts may not infer, imply, or do any research without morphing into activist benches.
When the right talks about "activist judge" it is in the sense that these judges are bypassing the legislative process rather than enforcing it. Gay marriage opponents, for example, have typically waxed and waned that legislatures haven't been the ones approving an expansion of gay rights -- it was activist judges! Do we have to ignore provisions in the CA constitution, for example, that explicitly say discrimination of homosexuals is unconstitutional?
Posted by: John Jensen on May 14, 2009 02:01 PMI am saying that when the legislature approves a bill, then the court isn't "legislating from the bench" which I think is the typical definition of an activist judge. In fact, relying to the legislature in a case like this is by definition judicial restraint.
Posted by: John Jensen on May 14, 2009 02:08 PMReally? When?
I realize that the current right wing talking points require a strange disparagement of the notion that a Supreme Court justice should have empathy for the people affected by our laws -- and pudge is reliably on point with parroting this idea. Still, in the overall context of his post, the empathy throwaway at the end doesn't make any sense.
Pudge says "Obama calls it empathy", but it's not clear what he is referring to. Immediately above this line he talks about ignoring the Constitution and hating the rule of law. Funny, I can't recall Obama ever referring to these things as empathy.
Earlier, pudge talks about Breyer "[setting] aside the text and intent of the Constitution in order to push his vision of its purpose, trying to produce a particular outcome he favors, that he believes is more in line with that purpose." OK, but when has Obama ever called this empathy?
Think what you like about Breyer's views, but the last line of pudge's post just doesn't follow from what precedes. It's either a mindless repetition of the talking points of the moment, or pudge is just engaging in his favorite pastime of putting words in the mouths of others.
It absoultely does not. For it to do so, in fact, would require Congress TO make laws abridging the freedom of speech.
I do not think it is unfounded to suggest that an extreme amount of money and influence will crowd out speech in a way that wasn't fathomed by the founders.
Then amend the Constitution.
I think it is illogical, and pudge would agree, to make your single point of understanding the constitution the document itself.
This is, I think, a fundamental error Breyer makes in his book, though it has little to do with my criticism of his viewpoint, so I didn't mention it: he conflates "originalism" and "textualism" with "strict constructionism." The first two are not the same, but are similar; however, almost no one is a strict constructionist, meaning that they just follow the words of the Constitution as we read them today.
The question should be whether the purpose suggested is constitutionally sound
Well, but Breyer (heh, I said Stevens in last post, you confused me when you mentioned Souter and then I got 'S' on the brain) explicitly points out times when those purposes DO diverge from what the Constitution says and clearly intends, and then says they are constitutionally sound BECAUSE they are the purposes. It's a nice little form of question-begging.
most judicial thinkers believe there is a right to privacy in constitution even though that word never appears in the document
The right to privacy is a canard. The real issue -- as usual -- is simply whether the life in the womb deserves rights. If it does, then no right to privacy is sufficient to prevent government protection of that life. If it does not, then of course the government has no say in the matter.
The due process clause in the 14th amendment is widely interpreted to extend rights to individuals that are implicit with the concept of "liberty."
That reminds me of another crazy example Breyer has. He said the 14th Amendment was not designed to protect the rights of majorities -- whites -- but minorities. So it is OK to discriminate against whites if the PURPOSE of the discrimination is to encourage more participation among minorities. Hence, quotas that discriminate against white students at public universities are acceptable, despite the fact that the law and the Constitution explicitly say otherwise.
This is completely wrongheaded. The law SAYS you can't do that. It was INTENDED to say that. If you want to create loopholes, then do so; otherwise, go by what the law SAYS, not what you think fulfills some larger purpose. By Breyer's views, one could argue ANY discrimination against whites is acceptable: it is entirely up to the discretion of those "modest" men and women in robes. This is injustice, because it takes away our right to self-governance and our ability to rely on the law to protect our rights and our current actions.
Gay marriage opponents, for example, have typically waxed and waned that legislatures haven't been the ones approving an expansion of gay rights -- it was activist judges! Do we have to ignore provisions in the CA constitution, for example, that explicitly say discrimination of homosexuals is unconstitutional?
There are no such provisions, in fact.
The intent of the First Amendment is to proscribe the government from abridging the freedom of speech. The purpose -- according to Stevens -- is to encourage "democratic participation."
I do not want to argue semantics -- it's a synonym in the English language. I am assuming that Breyer is using them interchangeably. If he is in inventing purpose then he is inventing intent.
It seems to me that Breyer would say the intent of the First Amendment to is allow for freedom of speech, thus encouraging x, y, or z. If after the "thus" is your problem, I don't know what to tell you. Clearly the founders wrote the bill of rights for its outcome and not merely to use ink. The outcomes, the intended outcomes, or the purpose are vital considerations.
I see no evidence in your post that say Breyer doesn't consider "intent" -- if that is in the book then let me know.
Scalia approaches this by asking what arms meant to the people at the time who wrote and ratified the Second Amendment (and offhand, I don't know what his response would be). Stevens, however, would ask what the PURPOSE of the Second Amendment was: that is, was it to defend the nation from foreign invaders? To provide for defense of the home? To hunt?
This is a good example of the difference you're drawing between intent and purpose.
In the end, I have to say I still believe they are the same thing. Scalia's logical conclusion is that only muskets are explicitly allowed under the constitution. Breyer's is that weapons suitable for person defense, hunting, etc. in modern times are the intent of the amendment. We have to assume the authors of the bill of rights believed that technology would continue to advance.
Breyer's conclusion as you frame it however, I do disagree with. On the other hand, that does not disparage his entire judicial philosophy as I also disagree with Scalia if he were to require another amendment so we enjoy a constitutional right to semi-automatic handguns.
My issue would be whether the purpose/intent is supported by historical evidence. If this were always clear, we wouldn't really need a Supreme Court.
I didn't say anything about people being uncontrollable.
No, you did not, but I presume the most serious issues with an "activist judge" isn't that they are an imperfect check -- called judicial restraint when republicans craft the law. I presume the problem is that they themselves are unchecked without something onerous like an amendment. That is hardly the case with McCain-Feingold, one of your supporting examples.
Posted by: John Jensen on May 14, 2009 02:25 PMI would have to read his book to get a better idea of his philosophy through my own lens. I'll try to check it out from the library soon.
Hence, quotas that discriminate against white students at public universities are acceptable, despite the fact that the law and the Constitution explicitly say otherwise.
In fact, Breyer agreed with the majority that the University of Michigan Undergrad program violated the 14th amendment since it applied specific weights toward minorities. Quotas have been illegal for decades, and given Breyers opinion in this case I find it hard to believe that he supports quotas.
The right to privacy is a canard.
Um, unless you want to use contraception with your partner or engage in homosexual intercourse, two well-known decisions resting on the due process clause. No, it's a real right with real cases surrounding it. It wasn't invented and disappeared with Roe v. Wade.
There are no such provisions, in fact.
You are correct, my mistake.
Posted by: John Jensen on May 14, 2009 02:39 PMEXTRA CREDIT QUESTION: Which of the above can be accomplished without (a) empathy? (b) apathy?
Posted by: MikeBoyScout on May 14, 2009 06:41 PM"The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution; they cannot assume any of the rights annexed to the judicial; for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs. Both are derived from the same source; both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial. The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitution of the country contrary to the sense of the parliament -though the parliament will not set aside the judgment of the court-yet, they have authority, by a new law, to explain the former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme and no law, explanatory of the constitution, will be binding on them."
Posted by: MikeBoyScout on May 14, 2009 07:04 PMThe judiciary is now politicized and don't see that changing. Based on the last election results, it appears that Republicans can win, but only if they resonate with the voters and cause a perception shift, similar to what the Obama candidacy brought.
Obama characterized those who were conservatives as old white men, whose idea of hard work and being god-fearing was so yesterday as opposed to the new world order. Obama was cool and liked hip-hop and epitomized the under 35 age group. Anyone over 45 was characterized as old, although that message is without substance. What this methodology did was take the typical conservative issues off of the table, coupled with the fact that Bush was a faux-conservative or a progressive conservative who gravitated toward big government. Along with the Democrat marketing strategy, this took the wind out the sails of the Republicans and they still seem to be on their heels.
I have concluded that in order to win in 2010, that Republicans will need to formulate an effective counter strategy to offset the Democrat marketing strategy. It will take something like the "Contract for America", used in 1994, except it will have to marketed in today's terms.
This may sound funny, but perhaps they should read "Rules for Radicals" by Saul Alinsky on how to make the most of photo-ops with small numbers. Obama's minions went strictly by that book. The challenge will be are they able to market themselves as effectively as they did in 1994, because it will take something like that to take back a part of Congress in 2010. The other thing is stay away from big government (i.e neo-cons) as candidates. I am keeping my fingers crossed for hope and change. How about the slogan; "Restore America" for starters and then lay out a 10 point plan ?
Posted by: KDS on May 14, 2009 08:02 PMThomas Sowell speaks to this and specifically references Breyer in his townhall column from 2-1/2 years ago.
An excerpt from the column:
In a recent interview, Justice Stephen Breyer claimed that laws are "not clear," so that judges are forced to base their decisions on the "values" they see behind the laws, rather than the specific words in those laws.
"Not clear" is an old ploy and "values" are a blank check.
4 years of Obama doesn't scare me half as much as the ideological nut he'll appoint to incorrectly interpret the constitution through the lens of "empathy" rather than the written words contained in the document for the next 25+ years. See Ruth Bader Ginsburg
Posted by: Rick D. on May 14, 2009 08:41 PM"The judiciary is now politicized..."
Now? It always has been politicized and always will be. It is designed to be politicized. This isn't a bad thing. Losing the political battle is a bad thing.
"Based on the last election results, it appears that Republicans can win, but only if they resonate with the voters...."
Any realistic expectation of the Republican party returning to power must include the understanding that it is unlikely until 2014 barring a complete and utter f-up by the Dems. Something on par of an unnecessary war against a country that had nothing to do with an actual attack on the US while the attackers persist. Cold hard facts. There is a season, and this is the season for cleaning out the idiots and feudalists who ruined (and are ruining the party).
@20 Rick D. on May 14, 2009 08:41 PM
Thomas Sowell is a crank hack.
There is no incorrect interpretation of the constitution when it is done by a Supreme Court justice voting in the majority. The privilege to interpret and apply the constitution is theirs and theirs alone, as DEFINED in the constitution. This specific point was debated during the ratification of the constitution (see my post 18).
The delegates to the constitutional convention understood the ramifications, and the anti-federalists were in the minority.
So says someone calling themselves "mikeboyscout" on a political blog. I think I'll stick to an intellecutual like Sowell's writing, but thanks.
There is no incorrect interpretation of the constitution when it is done by a Supreme Court justice voting in the majority.
Sure there is.
The Kelo V. New london ran directly contrary to the constitution. 9 men/women in black robes interpreting the constitution does not guarantee their 'majority' decision is the correct one.
It's easy to imagine. What if the Supreme Court interprets the Constitution to say that the President can only nominate justices to the Supreme Court, who are first proposed to him by the current members of the Supreme Court? This would be an incorrect interpretation of the Constitution, obviously. (And hopefully, the President and Senate would refuse to abide by such a ruling, and the House would initiate impeachment proceedings against the members ruling such a way.)
Proper interpretation of the Constitution is not in what the Court says, but in what the Constitution says. Or as Supreme Court Justice Felix Frankfurter said, "the touchstone of constitutionality is the Constitution itself and not what we have said about it."
It is a commonly held and false view that constitutionality is what the Supreme Court says. Constitutionality is what the Constitution says. The Court only determines -- usually, but not always -- what is holding.
Anyway, this is question-begging on Mike's part. Even if what he says is true, that it is correct just because the Supreme Court says so ... fine, but that just makes it even more important to fight against people who subjugate the rule of law as Breyer and Obama and Holder do. This is less about what is "correct" than what is "right," and following the rule of law is right, while the rule of man that Breyer holds to isn't.
The right to bare arms means, any reasonable level of arms needed for the rightful defense of the individual or group of individuals. In conditions where the Rule of Law is incapable of holding the Criminals at bay from afflicting the public with weapons superior to hand guns and long guns then, yes the public has the right to match the weaponry that they are faced with by the Criminal element. If the Criminals become well armed with mortars, grenade launchers and perhaps, even tanks like some of the conditions in Iraq, Afghanistan and Pakistan then, the individual, neighborhood, community has every right to have the same weaponry and superior as well, to properly defend themselves.
Of course if you're fearful now of black helicopters then you might be over-armed...
He is not using them interchangably. As I quoted in the other critique, he is talking about a broad purpose as opposed to the specific intent.
I see no evidence in your post that say Breyer doesn't consider "intent"
I didn't say he did; I said he weighs intent disfavorably against purpose.
Breyer's is that weapons suitable for person defense, hunting, etc. in modern times are the intent of the amendment.
I see no reason to think this is not the "intent" that Scalia also sees. But Breyer's reasoning goes beyond this intent to look at the "purpose," which is personal defense or whatever, which he may deem is not served by the intent you mention.
If Breyer sees that defense of the home and the community and the state from bad guys is the purpose of the Second Amendment, and he sees that police and national guard are sufficient for our defense, then he could rule that there is no need for anyone to have guns, and therefore Congress taking away our right to guns is constitutional.
Breyer's conclusion as you frame it however, I do disagree with.
And that's the difference between intent and purpose.
On the other hand, that does not disparage his entire judicial philosophy
If it leads to a judge having the power to take away our constitutional rights (or approve of the Congress doing such), I think it is necessarily disparaging.
as I also disagree with Scalia if he were to require another amendment so we enjoy a constitutional right to semi-automatic handguns.
I don't agree with your analysis of Scalia's interpretive methodology at all; but even if it were accurate, then it would simply be disparaging to his philosophy as well as Breyer's. Though not as much. I'd much rather have a justice be overly strict in his interpretation of the Constitution than overly liberal, as at least being overly strict will recognize the unalienability of our clearly enumerated rights, while Breyer's philosophy literally can lead to recognizing none of them.
My issue would be whether the purpose/intent is supported by historical evidence.
I find that to be irrelevant. In this case, Breyer may be right that the purpose of the Second Amendment is only to provide for our defense. And he may even be right (though I would obviously disagree) that the police and national guard mean we no longer need private arms for that purpose.
But even if that's all true, it still does not justify, in any way, allowing legislation that takes away our Second Amendment rights. The law says we can keep and bear arms. The reason why the Framers recognized this right is not the point: they recognized it in the form of constitutional amendment, so it exists until the Constitution is amended to take it away.
Breyer doesn't believe this fundamental principle of law. He believes it can be taken away by legislative act, with his approval, if he simply doesn't believe the right is necessary anymore.
This philosophy obviously threatens ALL of our rights. Our constitutional republic was explicitly designed such that rights could not be taken away except by amendment.
I presume the problem is that they themselves are unchecked without something onerous like an amendment.
Nope. The President and Congress have the power to ignore the Court. The Congress can impeach its members or limit its jurisdiction (something a lot of people don't like to think about).
My problem is not about checks, although you're right that many checks on the Court is a difficult one. My problem is with them not doing their jobs properly. This in itself is a bad thing, even if there were simpler checks. The importance of the problem is increased due to a dearth of usable checks; this is true.
In fact, Breyer agreed with the majority that the University of Michigan Undergrad program violated the 14th amendment since it applied specific weights toward minorities. Quotas have been illegal for decades, and given Breyers opinion in this case I find it hard to believe that he supports quotas.
There are two cases. The undergrad case had Breyer agreeing that the U of M admissions policy violated the 14th Amendment because minorities were all given an automatic point on their admissions. But in the law school case, U of M's similar policy was upheld.
The reason why is that O'Connor and Breyer felt that the undergrad program was not narrowly tailored for a specific compelling interest, and the law school program was (to encourage diversity). So again, I am not saying Breyer completely disregards the law, but he is quite willing to weigh the "purpose" of the law above its clear meaning.
So in this case, Breyer says that if there's a compelling interest in doing so (such as "diversity"), the government may discriminate against white people. But that's not what the law says.
The right to privacy is a canard.
Um, unless you want to use contraception with your partner or engage in homosexual intercourse, two well-known decisions resting on the due process clause.
I meant in reference to the abortion issue, it is a canard.
When people ask me about the 2nd amendment I ask them what they think is the meaning of the phrase: "the right of the people to keep and bear Arms, shall not be infringed". They almost always dismiss it and try to shift the discussion to the "well regulated militia" clause. Ultimately, 100% of the time at least one person calls the Constitution an anachronism meant for life 200 years ago and should have no bearing on life today.
The desire to control other people is a terminal illness that can only be cured through consistent indoctrination starting at an early age. I don't believe humans are capable of valuing and/or respecting the rights of others without some form of brainwashing. In the absence of education, we revert to our animal instincts.
Thanks to our wonderful anti-liberty public school system, we now have a society made up of generations of people who were never taught the American ideal of individual liberty. We're all reverting back to our animal instincts of control for personal gain. The Constitution has no meaning in a society that doesn't share the values of what is written on it.
Posted by: blindman on May 15, 2009 10:50 AMNope. Still here. Too busy today to deal with your craziness, Danny-boy. But what "extreme things" are you talking about? Would it have anything to do with the world not lining up with your weird paranoid fantasies?
Anyway, I just think that this is a disingenuous conversation because *all* judging can be considered "activist" judging, according to pudge's standards. But I'll let the other folks argue this one right now...
Posted by: demo kid on May 15, 2009 11:06 AMThe above are the equivalent to hard coding generated data in to a program. It works well the first iteration, but you're stuck with an impossible maintenance task for ever.
The 2nd amendment is a good example. There is practically no contemporaneous information available regarding what is meant by that single sentence. There is even controversy about which of the two versions of the sentence is authoritative. A Textualism/Originalism approach to interpreting it would lead to it meaning nothing and require a new amendment for the rights we have today.
No doubt many disagree, that's your right (or is it? there is no specific right for you to disagree with me in the text of the Constitution!).
Dynamic is always better than Static unless you only have a need for one time use.
Of course, dynamic needs to be carefully designed, and we should always be grateful for the elegant design of our US Constitution - even when the outcome of the process doesn't bring us what we want at any given instance.
The law school policy was not similar because it did not apply "points" and did it constitute a quota nor discrimination. The school has a rational reason to encourage racial diversity, and the majority ruled that if race is just one of many factored considered then it doesn't violate equal protection. Your characterization of his "support" of quotas was unjustified -- a minor slip perhaps, but not accurate.
I meant in reference to the abortion issue, it is a canard.
I don't mean to talk about abortion. Obviously the court disagrees with your opinion on this issue, but I am establishing that a series of rulings and thus a definition of rights of which we're all familiar with was neither explicitly defined within the constitution nor "guessed" or "divined." I have no interested in arguing whether the constitution is living or breathing, but until 1965 there wasn't case law defining a right to privacy and since then they have been fundamental in deciding many cases.
Posted by: John Jensen on May 15, 2009 11:52 AM"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..."
The Hallowed father of the modern Conservative movement, William F. Buckley, was correct to create and push the issue with Griswold v. Connecticut.
The fact that the right can be abused is a matter of personnel choice and responsibility, and no business of the government.
False, of course. This is the fallacy I exposed at the very beginning of my post. Judging according to what the law says, according to its intent, is obviously not activist. Explicitly ignoring what the law says to get to some higher "purpose" is activist.
Ok, define the difference between "intent" and "purpose"!!!!
Posted by: MikeBoyScout on May 15, 2009 12:27 PMMain Entry: intention
Part of Speech: noun
Definition: What one intends to do or achieve.
Synonyms: aim, ambition, design, end, goal, mark, meaning, object, objective, point, purpose, target, view, why
Source: http://thesaurus.reference.com/browse/intent
Posted by: MikeBoyScout on May 15, 2009 12:29 PMFind ONE instance where any SCOTUS decision which EXPLICITLY nullified the Constitution. Just ONE.
Bob&Weave, Bob&Weave,Bob&Weave,Bob&Weave,
Posted by: MikeBoyScout on May 15, 2009 12:38 PMSo what is judicial restraint? Most of the time is deferring to the elected bodies of government in cases where questions of constitutionality are not 100% entirely obvious. You may ask for the judicial branch to be a better, stronger, more impressive check -- but that is not judicial restraint, that is judicial activism.
Posted by: John Jensen on May 15, 2009 12:50 PMThe above are the equivalent to hard coding generated data in to a program. It works well the first iteration, but you're stuck with an impossible maintenance task for ever.
Uuhhhhhhh. No.
There is practically no contemporaneous information available regarding what is meant by that single sentence.
False. Did you read the Heller decision? Apparently not.
There is even controversy about which of the two versions of the sentence is authoritative.
There's no serious "controversy" over two versions of the sentence.
A Textualism/Originalism approach to interpreting it would lead to it meaning nothing and require a new amendment for the rights we have today.
False.
there is no specific right for you to disagree with me in the text of the Constitution!
Why should there be? Have you ever read the Ninth Amendment?
Dynamic is always better than Static unless you only have a need for one time use.
Our law IS dynamic. It can be changed through amendment.
Of course, dynamic needs to be carefully designed, and we should always be grateful for the elegant design of our US Constitution
So why do you and Breyer ignore that design?
Which is my analogy to hard coding made clearer. Judicial decisions are made based on evidence (facts) and law.
Posted by: MikeBoyScout on May 15, 2009 12:52 PMWatch me discuss like you. :-D
"So why do you and Breyer ignore that design?"
False.
Uuhhhhhhh. No.
Ok, read the discussion you are posting to!!! That is to say, this was the topic of several comments already.
The fact that the right [to privacy] can be abused is a matter of personnel choice and responsibility, and no business of the government.
Except, of course, the topic was abortion, and if the life in the womb is protected by the rights enumerated in our Constitution -- as many of us believe it should be -- then no right to privacy is significant to take away those rights. Otherwise, we could justify all sorts of abuses against other people as being "private," up to and including murder. (Or incest, for that matter ...)
Find ONE instance where any SCOTUS decision which EXPLICITLY nullified the Constitution. Just ONE.
The decision to uphold the speech restrictions in McCain-Feingold. And if one more liberal had been on the Court, Heller would have gone the other way. Kelo v. New London is perhaps the easiest example.
Oh, and Mike, Lawyerwannabe was disagreeing with Breyer, and you.
Jensen:
So what is judicial restraint?
Following the law, rather than your view of what the law should be according to your view of its higher purpose. This is restraint. Restraint is not, by any means, refusing to strike down an unconstitutional law just because you think it fits in with this higher purpose.
"...but I am establishing that a series of rulings and thus a definition of rights of which we're all familiar with was neither explicitly defined within the constitution nor "guessed" or "divined."
The "rights" of which you speak, which are not explicitly written in the Constitution, must necessarily fall in a different category than the rights which are enumerated.
"Rights" which are bestowed by SCOTUS (e.g., Dred Scott, Plessy v. Ferguson) can be unbestowed. The rights enumerated in the Constitution are inherent, and can only be taken away by amending it (Kelo notwithstanding).
Posted by: ewaggin on May 15, 2009 01:00 PM"The decision to uphold the speech restrictions in McCain-Feingold." explicitly nullified the constitution.
U R SO FULL OF...
And what is that decision? And what does it say regarding nullification of the Constitution?
oh yeah, you're just pulling stuff out of your ___.
The Majority Opinion written by Justice O'Connor didn't base the decision on a nullification, but on case law.
Here's an except:
"Our CASES have firmly established that Congress's legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing ''undue influence on an officeholder's judgment, and the appearance of such influence."
Go look it up. Or better yet, humor us with your interpretation of O'Connor's original intent. :-D
"The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech."
Just where in the constitution are the words "sheep" and "fools" found??? :-D
Posted by: MikeBoyScout on May 15, 2009 01:22 PMThe framers of the Constitution in 1786 clearly thought the majority of residents subject to the law were fools. Only WHITE, MALE property owners were enfranchised to participate in our democracy and thus take advantage of the First Amendment's right to free political speech.
Posted by: MikeBoyScout on May 15, 2009 01:32 PM"So why do you and Breyer ignore that design?"
False.
Uuhhhhhhh. No.
Yes, you do. You want the law to be amended by people in robes instead of through the amendment process outlined in the Constitution.
And what is that decision?
That political speech can be restricted for a "higher purpose." Let's be clear: the law explicitly banned certain TYPES of SPEECH during certain time periods. And this ruling upheld that.
And what does it say regarding nullification of the Constitution?
It explicitly rejects the First Amendment prohibition on congressional acts that abridge the freedom of speech.
And fyi Bob&Weave, Scalia's dissent meets your definition of Judaical Activism.
Not remotely.
He neither cites specific language in the constitution, law or case law.
False. First, Scalia discusses a significant amount of caselaw, and the First Amendment, in his dissent. Second, Scalia concurred with Rehnquist's dissent, which also did.
And Scalia's dissent in the McCain-Feingold case takes the cloak off of HIS pompous, self-righteous approach to 'original intent'.
Not remotely.
Unable to find any original intent, he goes off and creates his own.
No, he doesn't.
The framers of the Constitution in 1786 clearly thought the majority of residents subject to the law were fools.
False and entirely irrelevant.
"He neither cites specific language in the constitution, law or case law.
False. First, Scalia discusses a significant amount of caselaw, and the First Amendment, in his dissent."
Really? SHOW US.
He citations for his decision are English law.
"The framers of the Constitution in 1786 clearly thought the majority of residents subject to the law were fools.
False and entirely irrelevant."
Really? False? I guess we F-d up when we passed the 14th, 15th, 19th and 24th amendments cuz we were good to go.
you're a real piece of work.
Posted by: MikeBoyScout on May 15, 2009 02:11 PMor
"The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 ..."
I concede. That pretty much settles it.
THANK GOD for the wisdom of Scalia and Bob&Weave!
And FOO on those Judicial Activists and Active Liberty judges who just make stuff up!
I mean, clearly the Stamp Act of 1712 is right there in the Constitution.
:-D
Really?
Yes.
SHOW US.
Shrug. Here's one of many:
In NAACP v. Button, supra, at 428-429, 431, we held that the NAACP could assert First Amendment rights "on its own behalf, ... though a corporation," and that the activities of the corporation were "modes of expression and association protected by the First and Fourteenth Amendments."
He citations for his decision are English law.
Are you perhaps not looking at McConnell v. FEC (2003), but some other case?
Really?
Yes.
False?
Yes.
I guess we F-d up when we passed the 14th, 15th, 19th and 24th amendments cuz we were good to go.
You are falsely inferring that not providing voting rights to everyone means that they thought those people were fools. That's obviously not the case.
And further, it's irrelevant to the discussion at hand. Your basic argument is the genetic fallacy: they had bad views so we shouldn't care what they thought. Except that's not how law works.
Scalia in his dissent uses such strong originalism as "The First Amendment does not in my view permit the restriction of that political speech."
You appear to imply this is not originalism. If that is what you are implying, why?
"The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 ..." ... I mean, clearly the Stamp Act of 1712 is right there in the Constitution.
You appear to be implying that Scalia is looking to British law to interpret American law. Of course, it's clear Scalia was doing no such thing. He does two things: foremost, he is making the case that "where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore."
That is, he is not looking TO British law, he is looking at the effects of similar acts against "money" as it pertains to free speech. It would be idiotic for Scalia to not take an example of how restrictions on money are a de facto restriction on speech just because they came from non-American legislation.
Second, of course, Scalia is discussing the context in which the American Constitution (and the first Amendments) were written, of which the Stamp Act is a significant part.
And FOO on those Judicial Activists and Active Liberty judges who just make stuff up!
Are you implying Scalia made anything up? If so, what? Certainly he did not make up that the Stamp Act affected speech, nor that political speech is of special importance for First Amendment protections.
You've made a lot of allegations, many of which are just wrong, and most of the rest you've utterly failed to back up.
The Stamp Act of 1712 was modified by the Parliament because of the impacts on speech and the Stamp Act of 1765 didn't have the speech issues of the 1712 version.
Understand all, that all Judges attempt to cloak their power to arbitrarily judge in some grand philosophy. Scalia just does it sloppily and pompously. Breyer slightly less so.
Posted by: MikeBoyScout on May 15, 2009 02:44 PMThat is not the accepted definition of judicial restraint.
"[...] a policy of judicial restraint -- one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene -- enables this Court to make its most effective contribution to our federal system of government." -Justice Stevens
The court should not be deferential, but unlike your framing of the 1st amendment as "obviously" in contrast to McCain-Feingold, there was in reality a 5-4 split in favor of the law. You may want to call this judicial activism, but I am completely unconvinced that there are no legitimate questions with your stance. In cases like these, I'd rather slim majorities defer to the elected branches than slim majorities effectively re-write the law.
Of course, I would not codify this or make it law or anything of that nature, but it is very common for justices to concur with or even join the majority in an effort to not over-turn laws from congress and signed by the president. Again, this is another instance where I think trying to simplify big issues and draw lines in the sand ("they hate the rule of law") clouds the discussion. These clouds make some of the philosophy you espouse unreasonable to function in the real world.
I've hinted at this point but apparently need to make it clear. The intent of the 14th amendment and due process were? And the purpose? Both of these questions were summarily answered and the Court thus established in case law a constitutional right to privacy from the government. Is that a strict interpretation of the constitution? Is it judicial activism? How can a right be decided upon through case law? Did we have a right to privacy before the court's ruling in 1965?
These are questions that require critical thinking, and I'm sure you'll be happy to field them. But my point is that this sort of simplification for the masses is a misleading way to frame important constitutional debates.
These debates do require presenting arguments in a way that is different than just stating what you feel are truisms. That's how I feel you handled your McCain v. Feingold response. As if the word "obvious" obliterates thousands of words of judicial opinion. More depth is required, simply put, than saying someone "hates the rule of law" or that they're an activist judge.
Posted by: John Jensen on May 15, 2009 02:53 PM"you've utterly failed to back up."
Yeah, We're waiting for a SINGLE citation from you.
Where did O'Connor EXPLICITLY nullify the First Amendment in MCCONNELL V. FEDERAL ELECTION COMM’N (02-1674) 540 U.S. 93 (2003?
You know how to use the Google, or is HTML italics as far as you go? :-p
"Scalia in his dissent uses such strong originalism as "The First Amendment does not in my view permit the restriction of that political speech."
You appear to imply this is not originalism. If that is what you are implying, why?"
Scalia's view, your view, my view, Junior Griffey's view.... their all opinions. Scalia's approach to Originalism/Textualism is akin to that of the Oracle of Delphi.
His view counts because he his one of nine SC Justices, not because he can divine the thoughts and intent of people 220 years ago.
He leans first and foremost on his intuition. And if he wrote that crap in a law school he'd get a failing grade.
I'm grateful for your lazy example of the McCain-Feingold case. Scalia's opinion is a disorganized and rambling attempt to justify his opposition to a law while O'Connor's opinion is a well reasoned and relevant decision. The law itself sucks, but O'Connor logically shows why Congress has the authority to make law, albeit bad.
Probably why O'Connor was able to garner a majority and Scalia couldn't garner squat.
Posted by: MikeBoyScout on May 15, 2009 03:02 PMPerhaps, but they are limitations on the other branches nonetheless and I'd like to know why these aren't examples of rampant judicial activism.
Posted by: John Jensen on May 15, 2009 03:07 PMYeah pudge, you shouldn't write like this. Explicitly has a definition and you are simply misusing the words. Explicitly would read, "Congress has the right to make laws that restrict free speech." That sentence wouldn't continue, "when that speech interferes with the political process" or "when that speech can cause serious panic and harm such as yelling 'fire in a movie theater'."
If you have a quote to cite, please do so, but though we're always antagonistic this whole game of you misappropriating the language to your argumentative benefit is frankly boring. Of course the supreme court didn't explicitly eliminate the free speech clause of the first amendment. Why we even have to spend time discussing that is the essence of why this conversation will frankly never reach any sort of maturity and depth.
Posted by: John Jensen on May 15, 2009 03:16 PMYou original post:
"Nevermind that such "equality" was not an obvious purpose of the First Amendment or the Constitution."
Not to point out yet again your poor (non-existent?) research supporting your opinions, but are you at all familiar with the Federalist Papers? Do you know who James Madison was? As the principal author of the Constitution he is commonly considered to be the "Father of the Constitution"
In Federalist #57 Madison wrote:
"Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State."
SOURCE: http://www.constitution.org/fed/federa57.htm
It would appear to the casual reader that Breyer's interpretation of the First Amendment has much more support from Madison regarding economic equality in the election process than anything you have offered.
Posted by: MikeBoyScout on May 15, 2009 03:55 PMI'm not the one you need to worry about.
the British Stamp Act of 1712 was not about regulating speech
Yes, it was, in fact.
but collecting tax
On newspapers, for the purpose (in part) of limiting readership.
and never applied to the colonies
And Scalia never implied that it did.
Yeah, We're waiting for a SINGLE citation from you.
I gave you one. Do you not know how to read? Search the page for "NAACP" ...
Where did O'Connor EXPLICITLY nullify the First Amendment
Shrug. I never talked about explicitly doing anything. You asked about it, as though I had said it or had been trying to demonstrate it, and I stuck to my original point, which is that the decision did nullify the First Amendment. YOU introduced the word "explicitly," not me. Please do not resort to moving the goalposts. It's very dishonest of you. You're right, Jensen, I should not talk like that, and I didn't.
Scalia's approach to Originalism/Textualism is akin to that of the Oracle of Delphi.
Back it up. In your single attempt to undermine Scalia's credibility -- the Stamp Act nonsense -- I showed you were completely wrong.
He leans first and foremost on his intuition. And if he wrote that crap in a law school he'd get a failing grade. ... Scalia's opinion is a disorganized and rambling ...
How would you know? I already proved you didn't read it, or that you are being dishonest about it. You said -- and I quote -- "He neither cites specific language in the constitution, law or case law." But I already proved he did, through a quoted example, and there are many more examples of that in his opinion.
O'Connor logically shows why Congress has the authority to make law
No, she does not. What she does is argue that the law makes SENSE to her. She provides no serious logical argument that this law does not violate the First Amendment.
Which is probably why you like her: you identify with that sort of thing.
"Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State."
A fine quote. What's that got to do with the First Amendment, other than the fact that Madison wrote both it and (perhaps) this quote? This quote is otherwise unrelated to the First Amendment.
Perhaps you mean that this has to do with the Constitution, and I said equality was not a purpose of the Constitution. But what sort of equality do you think I was referring to? Publius is here talking about equality of participation in elections, not about equality in opportunity or outcomes, which is what I was obviously talking about (as it is what Breyer was obviously talking about).
You're only highlighting how insane Breyer's position is. Since everyone gets to vote, and the purpose of the First Amendment free speech guarantees is democratic participation, why then, everyone gets an equal chance to speak, and rather than abide by the text and obvious intent of the law to prohibit Congress from restricting speech, the Congress is now magically empowered to restrict speech so long as it is to enforce this "equality" which has been transmuted from a right to vote to a right to not have other people speak more loudly than you do!
Nuttery, plain and simple.
No, Mike is. He is the one who introduced that word as though it or its concept came from me.
"the British Stamp Act of 1712 was not about regulating speech
Yes, it was, in fact."
Sure, cuz you said so.
"Where did O'Connor EXPLICITLY nullify the First Amendment
Shrug. I never talked about explicitly doing anything"
"63. Jensen: Yeah pudge, you shouldn't write like this. Explicitly has a definition and you are simply misusing the words.
No, Mike is. He is the one who introduced that word as though it or its concept came from me."
Well get on ferreting out who posed as you
at #35
"EXPLICITLY ignoring what the law says to get to some higher "purpose" is activist.-Posted by: pudge (A.K.A. Bob&Weave) on May 15, 2009 12:23 PM"
Amnesia much???
"Yeah, We're waiting for a SINGLE citation from you.
I gave you one. Do you not know how to read? Search the page for "NAACP" ..."
One of us can read. LOL
And you are right, James Madison is an illegitimate authority when it comes to the intent of the First Amendment - you obviously know more than he would. I mean, what would Madison know about the Constitution compared to Bob&Weave. piece of work u r.
The Stamp Act of 1712 had nothing to do with the US - as we didn't yet exist, and nothing to do with the colonies. It had everything to do with re-filling the Crown's coffers in the wake of the War of the Spanish Succession.
To cite the British Stamp Act of 1712, a tax law of a foreign country implemented and abolished before the founding of the US as the primary justification (other than his own personal opinion) against the constitutional authority of Congress to establish laws regulating the expenditure of money in an election
is in NO WAY original intent. It is smoke and mirror BS.
There are ZERO references to the British Stamp Act of 1712 at the time of the Constitutional Convention and ratification debates. Scalia pulls it out of no where.
I'll say it again. The Constitution intentionally provides unlimited authority to SC justices to have opinions. The limiting factor upon those opinions is the Constitution provides no authority beyond moral suasion to enforce its rulings.
All this debate about Active Liberty and Textualism and Strict Construction is BS.
Either the ruling is politically viable, or not.
unlike your framing of the 1st amendment as "obviously" in contrast to McCain-Feingold, there was in reality a 5-4 split in favor of the law
What's the "unlike" doing there? You appear to think this is de facto evidence I am wrong. It's not.
In cases like these, I'd rather slim majorities defer to the elected branches than slim majorities effectively re-write the law.
Whether a majority is "slim" is irrelevant. What's important is that the decision be correct.
The intent of the 14th amendment and due process were? And the purpose?
I presume you mean Section 1, and the intent was in the specific case to guarantee rights to freed slaves, but it was broadly intended to go much further, not just to force Southern states to respect rights of blacks, but for all citizens.
The man who introduced the amendment in the Senate, whom Justice Hugo Black referred to only as Senator Howard, went into detail about the incorporation clause, and said "... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," which, he noted, "do not" (prior to the passage of the 14th Amendment) "operate in the slightest degree as a restraint or prohibition upon State legislation."
This was its intent, in brief: to restrict the power of the state.
The purpose, I suppose Justice Breyer would say, was to ensure and encourage broad democratic participation from all sectors of society. Despite the fact that Howard said the intent of the amendment was "to compel [the States] at all times to respect" (among other things) "the right to keep and to bear arms," Breyer could use this "purpose" to then allow states to engage in precisely such a restriction.
Did we have a right to privacy before the court's ruling in 1965?
Yes, through the Fourth Amendment in many cases, and through an obvious existing right referenced through the Ninth Amendment. Our unalienable right to the pursuit of happiness (which is, again, protected through the Ninth) is mostly a euphemism for the right to property (to avoid the word "property" as being seen as a euphemism for slavery), but it's broader: it's a right to do whatever the hell you wish, free from government interference as much as possible, whether it's having land, working land, reading a book, or doing nothing at all. This necessarily implies a robust right to privacy.
But my point is that this sort of simplification for the masses is a misleading way to frame important constitutional debates.
I engaged in no such simplification for any masses. I am critiquing the fundamental philosophy of Justice Breyer, as he himself explained it, as being contrary to the role of the judiciary in a constitutional democratic republic.
These debates do require presenting arguments in a way that is different than just stating what you feel are truisms. That's how I feel you handled your McCain v. Feingold response. As if the word "obvious" obliterates thousands of words of judicial opinion.
I am not going to go through the entire case for people like Mike who don't already understand it. The ruling was clear: political speech can be restricted if there's some higher purpose being served. And yes, this is contrary to the intent and letter of the First Amendment. Not very many words are needed to say this.
Posted by: pudge on May 15, 2009 09:45 PMBecause every history on the topic that I've ever seen -- which is at least several -- says so.
Amnesia much???
Um, no, since I wasn't writing about McConnell v. FEC in that quote.
One of us can read.
Hm? Are you saying I didn't provide a citation as you asked? Or are you making fun of yourself for seeing it neither in his opinion, nor in my response to you?
And you are right, James Madison is an illegitimate authority when it comes to the intent of the First Amendment
I never remotely implied any such thing. Please do not lie. Thanks. I stated that Madison wrote the First Amendment, and further that your quote from Federalist 57 had nothing to do with the First Amendment. None of that says Madison is an illegitimate authority. At most it says what I think is obvious: that you are not very good at this.
The Stamp Act of 1712 had nothing to do with the US
I never said it did.
To cite the British Stamp Act of 1712, a tax law of a foreign country implemented and abolished before the founding of the US as the primary justification (other than his own personal opinion) against the constitutional authority of Congress to establish laws regulating the expenditure of money in an election is in NO WAY original intent.
It is also not what Scalia did, as I already explained, and as you did not rebut.
The Constitution intentionally provides unlimited authority to SC justices to have opinions.
False. No one believes this. In fact, the Constitution explicitly grants the Congress with the virtually unlimited right to restrict the jurisdiction of the Court.
Mike, now let me say one more thing to you. It may be the last.
In the last two posts from you -- which are the norm -- you've ridiculed me for saying the Stamp Act of 1712 did something that virtually everyone who's written about it agrees with; you've continued to accuse me and Scalia of writing things about said Act which we did not; you took a quote of mine completely out of context; you continue to falsely claim that Scalia didn't reference U.S. law when he clearly did ...
Frankly, your idiotic behavior and opinions are boring, and I am going to ignore them from now on.
You won't ignore me because you can't. :-D
You cited "In NAACP v. Button, supra, at 428-429, 431, we held that the NAACP could assert First Amendment rights "on its own behalf, ... though a corporation," and that the activities of the corporation were "modes of expression and association protected by the First and Fourteenth Amendments." at #54 as an example of constitutional nullification.
It clearly is not.
The quotation you provided specifically justifies the decision BASED UPON THE CONSTITUTION.
So, to answer your query "Or are you making fun of yourself for seeing it neither in his opinion, nor in my response to you?" I am making fun of you.
If i have misunderstood you in regards to Scalia, i apologize. The point of the Stamp Act of 1712 diatribe is that Scalia is obviously not using the Constitution in his argument. I understood you to be in favor of Scalia's dissent based upon his being a textualist.
So, are we to conclude you find that Scalia is a Judicial Activist in the mode of Breyer?
Regarding Madison and his intent of the First Amendment, what was it regarding money and speech?
And please.... provide citations.
And why did Madison believe it was unconstitutional?
Violation of his First Amendment?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Posted by: MikeBoyScout on May 15, 2009 10:35 PMIs this an actual conclusion by Scalia, or your interpretation of what he "might" conclude? Because the other possible logical conclusion would be that any "weapons that are or could be currently used by soldiers are explicitly allowed under the constitution". This would dramatically increase the number of firearms available to the general public, eliminating any possibility of an "assault" weapons ban, the ban on automatic weapons (NFA?) from the 1930s, etc. It could still maintain a ban on nuclear weapons or tanks, as these would be arms that the government would provide to a particular military unit, but any firearm would then be acceptable under the Amendment.
Posted by: Calvin A on May 16, 2009 07:04 AMI believe the assault weapons ban was stupid and a poor implementation, but not unconstitutional. I think the second amendment protects the right to carry personal arms to defend yourself from threats, internal or external, and hunt. I do not think it can be demonstrated that you need an AK-47 to defend yourself from threats especially in the context of a modern US with a strong standing army. I do not believe that you have a right to protect yourself from the federal government, which would require arms such as tanks and nuclear weapons. Your recourse as a citizen isn't to blow up your government but to elect new lawmakers.
Posted by: John Jensen on May 17, 2009 03:41 PMThe Supreme Court ruled today that former attorney general John Ashcroft and FBI Director Robert Mueller may not be sued by Arab Muslims who were seized in this country after the 2001 terrorist attacks and allege harsh treatment because of their religion and ethnicity.
Javaid Iqbal was held in solitary confinement in a section of a Brooklyn prison known as Admax-Shu, for "administrative maximum special housing unit," where he said he was subjected to numerous beatings and strip searches.
Before the cases moved forward to the evidence-gathering stage, Ashcroft, Mueller and others who were sued asked the federal judge to dismiss the lawsuits entirely, claiming, among other arguments, that they had “qualified immunity” to the lawsuits and thus they should not go any further. The District Court ruled that the constitutional claims and the claim of a conspiracy to violate civil rights could proceed, finding that the detainees had offered sufficient information to allow them at least to go through the “discovery” (evidence-gathering) phase, and perhaps up to the point of seeking summary judgment before trial.
Basically, the petition urged the Supreme Court to lay down a rule that, when a top-tier government official is claiming immunity to a personal lawsuit, the courts should apply a more rigorous standard for the claims that must be made for the suit to survive a dismissal motion.
Source: http://www.scotuswiki.com/index.php?title=Ashcroft%2C_Former_ATT%27Y_Gen._v._Iqbal
So, if government employees throw you in prison, you don't get a day in court BECAUSE THE CONSTITUTION GRANTS THEM A HIGHER STANDARD - THUS EFFECTIVELY IMMUNITY?
ps - Breyer didn't think so, but Scalia does.
Posted by: MikeBoyScout on May 18, 2009 09:51 AMOf course: you cannot demonstrate that ANY weapon in particular is necessary. That's not the question the Second Amendment forces us to ask: it forces us to ask whether the government has a significant and narrowly tailored interest in any restriction, that does not substantively harm your rights. I can't see how a ban on AK-47s can pass such a test.
... especially in the context of a modern US with a strong standing army
... unless that army IS the threat.
I do not believe that you have a right to protect yourself from the federal government
You're wrong. Of course we do. We have an absolute human right to defend ourselves from ANY threat to our rights, no matter the source.
... which would require arms such as tanks and nuclear weapons.
Nonsense. We don't use nukes in Iraq or Afghanistan, nor do we use tanks in most places. You completely misunderstand the point. George Orwell said, "a simple weapon -- so long as there is no answer to it -- gives claws to the weak." Having claws doesn't mean you will WIN in armed conflict, it means you can cause damage, and as such, create a deterrence or other problems for the aggressor.
If what you say were true, then very few dogs would be capable of protecting themselves from grown men. A grown man can easily kill most dogs -- even without a weapon, but especially if you have, say, a hunting knife -- but wouldn't you still be wary of an angry dog baring its teeth, even if only a quarter your size? A labrador out for blood will repel almost any man, despite the fact that this man could fairly easily take that labrador in a fight. It's claws to the weak.
And in the case of the U.S. military acting against its own citizens, it's even worse (for the military): they are much less likely to want to harm their own people. At the very least, you'd see an unwillingness -- even to a much greater degree than we see in Iraq and Afghanistan -- to use the greatest amount of force to subdue the rebels, because they are their own people. And this opens up even greater opportunity to use those simple weapons. Claws to the weak.
It is true, as Orwell points out, that if the U.S. military were willing to use its full force against its people, those people would not stand a chance. But that is not likely to happen. Again, it doesn't even happen with our military in foreign countries.
Your recourse as a citizen isn't to blow up your government but to elect new lawmakers.
You're falsely assuming the government, in such a scenario, would necessarily be giving you that opportunity.
Some people say we should not have AK-47s, AR-15s, and the like because their only purpose is killing multiple people efficiently. But that's why I want one: the right tool for the right job, I say. And if our government does turn to tyranny, taking away even our right to vote, then that's a tool I want to have. There's also the possibility of civil unrest, of criminal gangs, and so on. Are these scenarios likely? Not today, no. But who knows what tomorrow will hold?
Again: the government needs to show it has a significant and narrowly tailored interest that justifies the taking away of our rights without substantively harming our essential rights. I think that's a very difficult case to make in banning rifles that are ballistically identical to hunting rifles and differ substantively only in the number of rounds that its magazine can hold.
Correctly, yes.
So, if government employees throw you in prison, you don't get a day in court ...
Nonsense. That is not what the ruling says at all. Indeed, the court said quite explicitly that any wrongdoing that happened can be brought to court. You either didn't understand the ruling, or you are misrepresenting it intentionally.
