by Ugh
As many (some?) of you know, I was "lucky" enough to take Constitutional Law from Prof. John "Torture? Hell yeah!" Yoo at Berkeley, back before his tenure at OLC in the Bush Administration. This was Con Law I, which mainly focused on things like separation of powers, the rights and duties of the legislative, executive, and judicial branches, and not, e.g., the Bill of Rights, due process, etc.*
One of his observations in class, and I forget how this came up, was that he would never want to be a Judge. A Supreme Court Justice, on the other hand…. And so here we are, faced with another kabuki dance of pretending a nomination to the Supreme Court is the same as any other position in the Judicial branch, and as long as someone has the necessary prerequisites, how can you possibly object?!!? He (and for all but 3 FOUR justices it has been "he"), has a distinguished career as a circuit court judge, writing decent opinions, and he "follows the law". What's to complain?
Well, SCOTUS justices don't have to "follow the law." At least on Constitutional questions and to a decent extent on statutory interpretation, they "make" the law. So that a circuit court justice actually felt bound by SCOTUS decisions and other precedent is neither here nor there. It seems likely that Kavanaugh's appointment will shift the court significantly to the right, making CJ Roberts and not J. Kennedy the median vote – and with Kavanaugh/Gorsuch/Alito forming a wildly conservative 3 vote block on most issues, 4 if you include Thomas, this does not bode well for the majority of Americans, perhaps the vast majority.
Anyway, just felt the need to get that off my chest.
P.S. There's something about Mitch McConnell that's so hypocritical it's like how much more hypocritical could he be? And the answer is none. None more hypocritical.
*Needless to say the powers of the President as taught by Prof. Yoo in class didn't exactly match up with his analysis in his OLC memos. Funny that.
Suppose (just for the sake of discussion!) that Mueller’s final report shows that Trump has been both funded and controlled by Putin. Not saying how likely I think that is. Just an assumption for the purpose of this comment/question.
What would be the position of anyone, especially any judge (or Justice), who was appointed by him? That is, even if they were simon pure when it comes to Russian influence on them personally, would the mere fact of being appointed by a Russian agent be cause for removal?
Suppose (just for the sake of discussion!) that Mueller’s final report shows that Trump has been both funded and controlled by Putin. Not saying how likely I think that is. Just an assumption for the purpose of this comment/question.
What would be the position of anyone, especially any judge (or Justice), who was appointed by him? That is, even if they were simon pure when it comes to Russian influence on them personally, would the mere fact of being appointed by a Russian agent be cause for removal?
Kavanaugh is even more of a piece of work than I thought…
https://www.wired.com/story/brett-kavanaugh-supreme-court-could-spell-trouble-for-tech/
Kavanaugh is even more of a piece of work than I thought…
https://www.wired.com/story/brett-kavanaugh-supreme-court-could-spell-trouble-for-tech/
wj – the House and Senate can, I would say, remove any Executive or Judicial branch official for any reason they want. Sure the Constitution says “high crimes & misdemeanors”, but IMHO there is no way a court is going to adjudicate a decision by the House and 2/3 of the Senate to remove an official for any reason or no reason.
So they could certainly use “nominated by a fraudulently elected President” as a reason to remove a judge/Justice.
But, what then? If Trump is still President is he barred from nominating anyone? And what good would it do if Pence was President when these judges/Justices were impeached? He could, I think, just renominate all of them. Perhaps he would choose different SCOTUS justices.
More broadly, suppose it was proven that the Russians had hacked the vote counting systems in a few states and flipped enough votes to Trump to hand him an election actually won by Clinton. What then? I think a court would rule “the Electoral College has voted and Trump is the President.”
One of the big holes in our system of government is how to remedy this kind of thing. Another: suppose Trump and Pence died in a plane crash between the time of the election and their inauguration. Would Hillary then be President? There is no answer in the Constitution, at least I’m pretty sure there isn’t.
wj – the House and Senate can, I would say, remove any Executive or Judicial branch official for any reason they want. Sure the Constitution says “high crimes & misdemeanors”, but IMHO there is no way a court is going to adjudicate a decision by the House and 2/3 of the Senate to remove an official for any reason or no reason.
So they could certainly use “nominated by a fraudulently elected President” as a reason to remove a judge/Justice.
But, what then? If Trump is still President is he barred from nominating anyone? And what good would it do if Pence was President when these judges/Justices were impeached? He could, I think, just renominate all of them. Perhaps he would choose different SCOTUS justices.
More broadly, suppose it was proven that the Russians had hacked the vote counting systems in a few states and flipped enough votes to Trump to hand him an election actually won by Clinton. What then? I think a court would rule “the Electoral College has voted and Trump is the President.”
One of the big holes in our system of government is how to remedy this kind of thing. Another: suppose Trump and Pence died in a plane crash between the time of the election and their inauguration. Would Hillary then be President? There is no answer in the Constitution, at least I’m pretty sure there isn’t.
suppose Trump and Pence [had] died in a plane crash between the time of the election and their inauguration. Would Hillary then be President? There is no answer in the Constitution, at least I’m pretty sure there isn’t.
Unlike you, IANAL. That said, I’m pretty sure that the language in the Constitution would devolve the Presidency on the Speaker of the House.
Certainly someone would have to step in. And I can’t see an alternative.
There might be a question, if their deaths occurred before the Electors vote, whether that would free those electors who are bound by state law to vote for the winner of the election in their state. If not, there could be an absence of a majority in the Electoral College, which would throw the decision to the House.
suppose Trump and Pence [had] died in a plane crash between the time of the election and their inauguration. Would Hillary then be President? There is no answer in the Constitution, at least I’m pretty sure there isn’t.
Unlike you, IANAL. That said, I’m pretty sure that the language in the Constitution would devolve the Presidency on the Speaker of the House.
Certainly someone would have to step in. And I can’t see an alternative.
There might be a question, if their deaths occurred before the Electors vote, whether that would free those electors who are bound by state law to vote for the winner of the election in their state. If not, there could be an absence of a majority in the Electoral College, which would throw the decision to the House.
I mentioned last night that Kavanaugh is a lickspittle. I see this morning that The Washington Post noticed his toadyism also.
Of course, Kavanaugh kissing He, Trump’s ass right off the bat is not likely to disgust Manly Men like Joe Manchin or Perennial Teases like Susan Collins. But I do hope that Leahy or Whitehouse might grill Kavanaugh on TV about it. Neither of them will do it as well as Al Franken would have, though.
Any SCOTUS nominee who is capable of the idolatrous flattery Kavanaugh exhibited by saying (to, and of, He. Trump!) that “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination” has some kind of “temperament”, but not the “judicial” kind.
–TP
I mentioned last night that Kavanaugh is a lickspittle. I see this morning that The Washington Post noticed his toadyism also.
Of course, Kavanaugh kissing He, Trump’s ass right off the bat is not likely to disgust Manly Men like Joe Manchin or Perennial Teases like Susan Collins. But I do hope that Leahy or Whitehouse might grill Kavanaugh on TV about it. Neither of them will do it as well as Al Franken would have, though.
Any SCOTUS nominee who is capable of the idolatrous flattery Kavanaugh exhibited by saying (to, and of, He. Trump!) that “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination” has some kind of “temperament”, but not the “judicial” kind.
–TP
There might be a question, if their deaths occurred before the Electors vote, whether that would free those electors who are bound by state law to vote for the winner of the election in their state. If not, there could be an absence of a majority in the Electoral College, which would throw the decision to the House.
Now you’re going to go and make me read (or re-read) the Constitution wj!
Whether their deaths occurred before or after the electoral college votes would certainly make a difference in how things played out.
There might be a question, if their deaths occurred before the Electors vote, whether that would free those electors who are bound by state law to vote for the winner of the election in their state. If not, there could be an absence of a majority in the Electoral College, which would throw the decision to the House.
Now you’re going to go and make me read (or re-read) the Constitution wj!
Whether their deaths occurred before or after the electoral college votes would certainly make a difference in how things played out.
Ugh, I suppose there’s some virtue in reading it occasionally. 😉
But the way I read Article 2, Section 1:
the state legislatures have the authority to force electors from their state to vote only for the person listed on the ballot. I don’t know if the various state laws make provision for a circumstance where said person is dead. But I’m guessing not.
Ugh, I suppose there’s some virtue in reading it occasionally. 😉
But the way I read Article 2, Section 1:
the state legislatures have the authority to force electors from their state to vote only for the person listed on the ballot. I don’t know if the various state laws make provision for a circumstance where said person is dead. But I’m guessing not.
Here’s a resource about the EC. I don’t have time to dig into it right now myself.
Here’s a resource about the EC. I don’t have time to dig into it right now myself.
I don’t know if the various state laws make provision for a circumstance where said person is dead.
Or, you know, under 35, or not a natural born citizen, or some other disqualifying characteristic, including that the person probably needs to be on this side of the grass.
There are a lot of Constitutional provisions that could use tidying up. The long period between election of the President and inauguration being just one. The electoral college mess being another.
I don’t know if the various state laws make provision for a circumstance where said person is dead.
Or, you know, under 35, or not a natural born citizen, or some other disqualifying characteristic, including that the person probably needs to be on this side of the grass.
There are a lot of Constitutional provisions that could use tidying up. The long period between election of the President and inauguration being just one. The electoral college mess being another.
“Well, SCOTUS justices don’t have to “follow the law.” At least on Constitutional questions and to a decent extent on statutory interpretation, they “make” the law.”
I’ve always had a huge problem with this formulation. I want to be clear that I understand that it is a common formulation, especially among living constitutionalist theorists, and especially when defending the Warren and Burger Courts so I’m not suggesting that it is obviously silly or wrong to talk about it that way, but I disagree with it.
The Supreme Court is tasked with applying the Constitution (among a couple of other tasks) in court settings. That is a function of a judge. The idea that it is supposed to function as a back door amender to the Constitution strikes me as highly suspect. If the Court is really a maker of laws rather than a judge-style applier of laws I have no idea why we would task that to 9 life time appointees who can only be overruled by an amendment to the Constitution, or presumably by repeated impeachment of judges making rulings 2/3 of the Senate doesn’t like.
I don’t understand how anyone thinks that is a good idea from even a remotely democratic standpoint. Constitutionalism has good arguments for temporarily thwarting majority will to protect minorities. But the kind of Courtarcy described by the “they make the law” seems far less defensible. It also isn’t clear to me whether or not people who use the formulation mean it as regrettable but descriptive (as in “they make the law and we unfortunately can’t stop them”) or if they mean it to be a good thing (as in “they make the law so we had better make sure that we get our judges in there so the other side can’t overrule our preferences except with a constitutional amendment or a violation on the norm against impeaching judges you merely disagree with plus 2/3 of the Senate”).
“Well, SCOTUS justices don’t have to “follow the law.” At least on Constitutional questions and to a decent extent on statutory interpretation, they “make” the law.”
I’ve always had a huge problem with this formulation. I want to be clear that I understand that it is a common formulation, especially among living constitutionalist theorists, and especially when defending the Warren and Burger Courts so I’m not suggesting that it is obviously silly or wrong to talk about it that way, but I disagree with it.
The Supreme Court is tasked with applying the Constitution (among a couple of other tasks) in court settings. That is a function of a judge. The idea that it is supposed to function as a back door amender to the Constitution strikes me as highly suspect. If the Court is really a maker of laws rather than a judge-style applier of laws I have no idea why we would task that to 9 life time appointees who can only be overruled by an amendment to the Constitution, or presumably by repeated impeachment of judges making rulings 2/3 of the Senate doesn’t like.
I don’t understand how anyone thinks that is a good idea from even a remotely democratic standpoint. Constitutionalism has good arguments for temporarily thwarting majority will to protect minorities. But the kind of Courtarcy described by the “they make the law” seems far less defensible. It also isn’t clear to me whether or not people who use the formulation mean it as regrettable but descriptive (as in “they make the law and we unfortunately can’t stop them”) or if they mean it to be a good thing (as in “they make the law so we had better make sure that we get our judges in there so the other side can’t overrule our preferences except with a constitutional amendment or a violation on the norm against impeaching judges you merely disagree with plus 2/3 of the Senate”).
The Supreme Court is tasked with applying the Constitution (among a couple of other tasks) in court settings.
Yes but the Constitution is incredibly brief and vague. This professor of mine once described the test he was put through in order to vote in the south. In addition to being asked to explain what the Latin phrases in the Constitution mean, he was asked “what does ‘due process of law'” mean?
He parried that, in his telling, by saying “I really don’t know, but neither does the Supreme Court…” That was him describing in 1993 a test he was required to take in the 1950s (or maybe earlier).
For better or worse, to your point, this is the de facto system we have. The Constitution is too hard to amend, even on simple procedural issues, and so it has devolved to the point where the Court is the Amender. I would not describe it as a “Courtacy,” since so much is still easily handled by the other two branches.
I would say that the “originalism” vs. “living constitutionalism” clash of views is overblown. Both are easily turned to the policy preference preferred by the Justice at hand.
The Supreme Court is tasked with applying the Constitution (among a couple of other tasks) in court settings.
Yes but the Constitution is incredibly brief and vague. This professor of mine once described the test he was put through in order to vote in the south. In addition to being asked to explain what the Latin phrases in the Constitution mean, he was asked “what does ‘due process of law'” mean?
He parried that, in his telling, by saying “I really don’t know, but neither does the Supreme Court…” That was him describing in 1993 a test he was required to take in the 1950s (or maybe earlier).
For better or worse, to your point, this is the de facto system we have. The Constitution is too hard to amend, even on simple procedural issues, and so it has devolved to the point where the Court is the Amender. I would not describe it as a “Courtacy,” since so much is still easily handled by the other two branches.
I would say that the “originalism” vs. “living constitutionalism” clash of views is overblown. Both are easily turned to the policy preference preferred by the Justice at hand.
I think your “good thing” formulation can just as easily be a realpolitik way of dealing with a regrettable reality, Seb.
(Just because you don’t like gunfights doesn’t mean you should bring a knife.)
I think your “good thing” formulation can just as easily be a realpolitik way of dealing with a regrettable reality, Seb.
(Just because you don’t like gunfights doesn’t mean you should bring a knife.)
I mean, stare decisis plays a big role in being a Justice, as does being able to marshal arguments combined with such precedent, but the idea that, especially in the Constitutional arena, the Justices are not making law just seems nonsensical.
We could have a Constitution the size of the U.S.C. and have more refined debates on what the law requires, but that’s not what we have.
I mean, stare decisis plays a big role in being a Justice, as does being able to marshal arguments combined with such precedent, but the idea that, especially in the Constitutional arena, the Justices are not making law just seems nonsensical.
We could have a Constitution the size of the U.S.C. and have more refined debates on what the law requires, but that’s not what we have.
The question is, was Mr Dooley correct?
And if so, which returns exactly?
Not to mention the question of whether the Court as constituted today behaves as it did a century ago.
The question is, was Mr Dooley correct?
And if so, which returns exactly?
Not to mention the question of whether the Court as constituted today behaves as it did a century ago.
apologies if some version of this shows up twice.
IANAL, but this is how it looks, to me.
The SCOTUS is tasked with articulating what the intent of the Constitution is, relative to some legal question, when other folks have been unable to find a satisfactory resolution.
If the intent is more or less clear, it doesn’t go to the SCOTUS.
So the whole thing about “balls and strikes” is, IMO, disingenuous. Balls and strikes are the easy cases, the ones where we all know where the boundaries of the batter’s box is, and all we need is somebody with good enough eyesight to tell if it’s in or out.
The SCOTUS is not about balls and strikes. The SCOTUS is about figuring out where the batter’s box is. Or if there even is one. Or if there is even a batter. Or if a pitch was even thrown.
That’s what they do.
To expect somebody to do that, without being influenced by every thing they have learned or experienced in decades of life is foolish. To claim that somebody is doing that, without being influenced by the same, is somewhere on the spectrum between disingenuous and deliberate, calculated falsehood. You can decide for yourself exactly where on that spectrum you think such claims lie.
The difference between ‘living constitutionalists’ and ‘strict constructionists’, as far as I can tell, is that the former consider what the authors’ intent would be *in the historical context in which the decision is being made*, and the latter confine their imagination to what they think the authors’ intent was at the time the document was written.
I leave the choice of which seems a preferable meaning for the word ‘intent of the constitution’ to you as well. I can tell you that the authors’ assumption at the time the document was written was that only adult white men, preferably property owners, would vote. Take it from there.
Whether you want to call it ‘making law’, or not, the SCOTUS has enormous influence over what laws actually come to be. And to claim that they are not influenced by their own personal political stance is obviously not the case.
The nation is divided, so the court is divided. And is divided in a way that is not representative of the nation as a whole.
That’s the problem.
apologies if some version of this shows up twice.
IANAL, but this is how it looks, to me.
The SCOTUS is tasked with articulating what the intent of the Constitution is, relative to some legal question, when other folks have been unable to find a satisfactory resolution.
If the intent is more or less clear, it doesn’t go to the SCOTUS.
So the whole thing about “balls and strikes” is, IMO, disingenuous. Balls and strikes are the easy cases, the ones where we all know where the boundaries of the batter’s box is, and all we need is somebody with good enough eyesight to tell if it’s in or out.
The SCOTUS is not about balls and strikes. The SCOTUS is about figuring out where the batter’s box is. Or if there even is one. Or if there is even a batter. Or if a pitch was even thrown.
That’s what they do.
To expect somebody to do that, without being influenced by every thing they have learned or experienced in decades of life is foolish. To claim that somebody is doing that, without being influenced by the same, is somewhere on the spectrum between disingenuous and deliberate, calculated falsehood. You can decide for yourself exactly where on that spectrum you think such claims lie.
The difference between ‘living constitutionalists’ and ‘strict constructionists’, as far as I can tell, is that the former consider what the authors’ intent would be *in the historical context in which the decision is being made*, and the latter confine their imagination to what they think the authors’ intent was at the time the document was written.
I leave the choice of which seems a preferable meaning for the word ‘intent of the constitution’ to you as well. I can tell you that the authors’ assumption at the time the document was written was that only adult white men, preferably property owners, would vote. Take it from there.
Whether you want to call it ‘making law’, or not, the SCOTUS has enormous influence over what laws actually come to be. And to claim that they are not influenced by their own personal political stance is obviously not the case.
The nation is divided, so the court is divided. And is divided in a way that is not representative of the nation as a whole.
That’s the problem.
“The nation is divided, so the court is divided. And is divided in a way that is not representative of the nation as a whole.”
But isn’t the real problem that either 5-4 split will not be representative of the nation as a whole, yet would remove huge numbers of questions from the field unless the other side (whichever side that is) can muster an amendment? The problem is that by repeatedly and increasingly relying on the Supreme Court for major change, it institutionally sets up conflicts to become nastier and nastier because every little win for the other side is way more entrenched than it would be for acts of Congress. Add the randomness of Supreme Court Justices dying or resigning and it gets even worse because there is a lottery like effect (even before we get to a discussion of McConnell’s horrific act).
“The nation is divided, so the court is divided. And is divided in a way that is not representative of the nation as a whole.”
But isn’t the real problem that either 5-4 split will not be representative of the nation as a whole, yet would remove huge numbers of questions from the field unless the other side (whichever side that is) can muster an amendment? The problem is that by repeatedly and increasingly relying on the Supreme Court for major change, it institutionally sets up conflicts to become nastier and nastier because every little win for the other side is way more entrenched than it would be for acts of Congress. Add the randomness of Supreme Court Justices dying or resigning and it gets even worse because there is a lottery like effect (even before we get to a discussion of McConnell’s horrific act).
Actual baseball umpires carry out the intent of the rule book of baseball sitting on the desk of the Commissioner of Baseball, who serves at the pleasure of the owners of the country, er, sorry, I mean, the owners of the baseball teams.
The strike zone changes all of the time, bottom of the knee, top of the knee from year of year. The rules on home runs change from park to park, depending on stadium dimensions and where the yellow line is on the fence, if there even is a yellow line. The composition and manufacturing of the baseball is altered according to the whim of the owners, who for now have decided home runs and high scoring games are more profitable than low-scoring games. The height of the mound changes from time to time and even then, groundskeepers from stadium to stadium have their little biases about how to groom it juke home field advantage.
Hell, every umpire has his own bias about what constitutes a strike and a ball. If you don’t believe that, try standing in the batter’s box at the whim of two different umpires.
Some of this is charming to my mind when it comes to baseball.
If Ugh is in the majority on the baseball Supreme Court, games will be two hours long. If I am, they will be longer.
According to what absolute, original, God-given standard, I ask you? To my mind a guy taking time to run through his personal idiosyncracies before stepping into the batter’s box is Natural Law.
Not charming when it comes to originalist judges deciding what suits their originalist interpretation of the Constitution.
If it’s an interpretation, than how is it original?
The entire umpire metaphor used by Roberts is hooey, like so many of the bedtime stories we tell ourselves in America.
The Republican Party is Pete Rose. They installed Roberts and company.
So who do you think gets to place bets on baseball winners and losers from the dugout telephone?
Pete Rose.
And vice-sa and versa, as Yogi Berra might add.
Actual baseball umpires carry out the intent of the rule book of baseball sitting on the desk of the Commissioner of Baseball, who serves at the pleasure of the owners of the country, er, sorry, I mean, the owners of the baseball teams.
The strike zone changes all of the time, bottom of the knee, top of the knee from year of year. The rules on home runs change from park to park, depending on stadium dimensions and where the yellow line is on the fence, if there even is a yellow line. The composition and manufacturing of the baseball is altered according to the whim of the owners, who for now have decided home runs and high scoring games are more profitable than low-scoring games. The height of the mound changes from time to time and even then, groundskeepers from stadium to stadium have their little biases about how to groom it juke home field advantage.
Hell, every umpire has his own bias about what constitutes a strike and a ball. If you don’t believe that, try standing in the batter’s box at the whim of two different umpires.
Some of this is charming to my mind when it comes to baseball.
If Ugh is in the majority on the baseball Supreme Court, games will be two hours long. If I am, they will be longer.
According to what absolute, original, God-given standard, I ask you? To my mind a guy taking time to run through his personal idiosyncracies before stepping into the batter’s box is Natural Law.
Not charming when it comes to originalist judges deciding what suits their originalist interpretation of the Constitution.
If it’s an interpretation, than how is it original?
The entire umpire metaphor used by Roberts is hooey, like so many of the bedtime stories we tell ourselves in America.
The Republican Party is Pete Rose. They installed Roberts and company.
So who do you think gets to place bets on baseball winners and losers from the dugout telephone?
Pete Rose.
And vice-sa and versa, as Yogi Berra might add.
One bit of irony. And this will certainly sound a little mean spirited if you don’t understand that I’m talking from despair about the state of our country.
I saw a tweet a couple of weeks ago (before the Kennedy resignation so they must have been talking about Gorsuch). It said something like “How sad it will be if our young people lose faith in the Court because of politically motivated rulings repeatedly thwarting the will of the majority”.
I wanted to say something about how that already happened and Roe v. Wade launching a thousand candidacies but I didn’t have the heart.
One bit of irony. And this will certainly sound a little mean spirited if you don’t understand that I’m talking from despair about the state of our country.
I saw a tweet a couple of weeks ago (before the Kennedy resignation so they must have been talking about Gorsuch). It said something like “How sad it will be if our young people lose faith in the Court because of politically motivated rulings repeatedly thwarting the will of the majority”.
I wanted to say something about how that already happened and Roe v. Wade launching a thousand candidacies but I didn’t have the heart.
But isn’t the real problem that either 5-4 split will not be representative of the nation as a whole
The nation as a whole does not have a coherent and shared sense of what the hell we are about.
That’s the real problem. In my opinion.
I wanted to say something about how that already happened
It’s been happening for quite some time.
You appear to believe that Roe was some kind of watershed event, that opened the door to the undermining of what was up until that point otherwise fair-minded and well-ordered representative governance.
I think that’s a pretty anhistorical view.
You also appear to believe that the substance of the Roe decision does not reflect the view of most folks in this country.
I think you’re mistaken there, as well.
I think a case can be made that the question of abortion does not property belong to the feds.
To make that case, you’re going to have to remove lots of other things out of the scope of responsibility of the feds, because the substance of the issue is not unlike a hell of a lot of other things that have long been within federal scope.
As practical matter, as far as I can tell the courts are as legitimate a venue for folks to sort out their differing interests as any other.
But isn’t the real problem that either 5-4 split will not be representative of the nation as a whole
The nation as a whole does not have a coherent and shared sense of what the hell we are about.
That’s the real problem. In my opinion.
I wanted to say something about how that already happened
It’s been happening for quite some time.
You appear to believe that Roe was some kind of watershed event, that opened the door to the undermining of what was up until that point otherwise fair-minded and well-ordered representative governance.
I think that’s a pretty anhistorical view.
You also appear to believe that the substance of the Roe decision does not reflect the view of most folks in this country.
I think you’re mistaken there, as well.
I think a case can be made that the question of abortion does not property belong to the feds.
To make that case, you’re going to have to remove lots of other things out of the scope of responsibility of the feds, because the substance of the issue is not unlike a hell of a lot of other things that have long been within federal scope.
As practical matter, as far as I can tell the courts are as legitimate a venue for folks to sort out their differing interests as any other.
“You also appear to believe that the substance of the Roe decision does not reflect the view of most folks in this country.
I think you’re mistaken there, as well.”
For decades about 65%-70% of the country has believed that most abortions should be illegal at some point in the second trimester. That is not permitted by Roe. About 80% of the country has believed it should be generally legal in the first trimester. About 25% of people believe that abortion shouldn’t be generally illegal until the 3rd trimester (or not at all illegal). That is distinctly the minority view (about the same number of people who believe that abortion should be illegal in the first trimester).
From my perspective, the process problem with Roe is that by making it a constitutional issue, anyone who wants to change it to what most people think is right, has to work with the extreme pro-life groups to get it done.
“You also appear to believe that the substance of the Roe decision does not reflect the view of most folks in this country.
I think you’re mistaken there, as well.”
For decades about 65%-70% of the country has believed that most abortions should be illegal at some point in the second trimester. That is not permitted by Roe. About 80% of the country has believed it should be generally legal in the first trimester. About 25% of people believe that abortion shouldn’t be generally illegal until the 3rd trimester (or not at all illegal). That is distinctly the minority view (about the same number of people who believe that abortion should be illegal in the first trimester).
From my perspective, the process problem with Roe is that by making it a constitutional issue, anyone who wants to change it to what most people think is right, has to work with the extreme pro-life groups to get it done.
That is not permitted by Roe.
Roe allows regulation of abortion in the 2nd trimester for the safety of the mother.
How that fits, or doesn’t fit, into the opinions of the 65-70% of the population who believe that “most abortions” should be illegal in the 2nd trimester, I can’t really say.
That’s as far down the Roe rabbit hole as you are going to drag me in this thread.
the process problem with Roe is that by making it a constitutional issue, anyone who wants to change it to what most people think is right, has to work with the extreme pro-life groups to get it done.
Dude, for “Roe” and “pro-life” feel free to insert 150 years of SCOTUS decisions about corporate personhood, or more recent decisions about guns, or any number of other topics.
The settled decisions of the SCOTUS do not reflect the will of the people in anything like a consistent way. Not at any point in time, not over time, not for any particular issue.
It is what it is. That is not their job. The courts are not obliged to follow polling results. Sometimes that sucks. It almost always sucks, for somebody.
That is not permitted by Roe.
Roe allows regulation of abortion in the 2nd trimester for the safety of the mother.
How that fits, or doesn’t fit, into the opinions of the 65-70% of the population who believe that “most abortions” should be illegal in the 2nd trimester, I can’t really say.
That’s as far down the Roe rabbit hole as you are going to drag me in this thread.
the process problem with Roe is that by making it a constitutional issue, anyone who wants to change it to what most people think is right, has to work with the extreme pro-life groups to get it done.
Dude, for “Roe” and “pro-life” feel free to insert 150 years of SCOTUS decisions about corporate personhood, or more recent decisions about guns, or any number of other topics.
The settled decisions of the SCOTUS do not reflect the will of the people in anything like a consistent way. Not at any point in time, not over time, not for any particular issue.
It is what it is. That is not their job. The courts are not obliged to follow polling results. Sometimes that sucks. It almost always sucks, for somebody.
happening for quite some time…
The First Amendment has grown enormously in significance since a piece of ‘judicial activism’ a century ago:
https://www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-american-history/278503/
It is an utter fiction to think that SC judges don’t make law – obviously not all of it, but a significant portion – and they have been doing so since Marbury v Madison.
happening for quite some time…
The First Amendment has grown enormously in significance since a piece of ‘judicial activism’ a century ago:
https://www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-american-history/278503/
It is an utter fiction to think that SC judges don’t make law – obviously not all of it, but a significant portion – and they have been doing so since Marbury v Madison.
In the context of a lament about 5-4 decisions in relation to the will of the people, a reminder that Roe v Wade was a 7-2 decision.
In the context of a lament about 5-4 decisions in relation to the will of the people, a reminder that Roe v Wade was a 7-2 decision.
Brown v. Board, 9-0, was met with such vehemence that it continues to this day.
Brown v. Board, 9-0, was met with such vehemence that it continues to this day.
wj: “And what good would it do if Pence was President when these judges/Justices were impeached? He could, I think, just renominate all of them.”
Conviction after impeachment can not just remove from office, but also “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”
Lifetime ban. Can’t be remedied by a pardon.
wj: “And what good would it do if Pence was President when these judges/Justices were impeached? He could, I think, just renominate all of them.”
Conviction after impeachment can not just remove from office, but also “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”
Lifetime ban. Can’t be remedied by a pardon.
Ugh: Brown v. Board, 9-0, was met with such vehemence that it continues to this day.
Vehemence and popular majority support are two different things, FWIW.
This is a morass of complications.
Ugh: Brown v. Board, 9-0, was met with such vehemence that it continues to this day.
Vehemence and popular majority support are two different things, FWIW.
This is a morass of complications.
Thanks Snarki. I had forgotten that, if I ever knew it.
Thanks Snarki. I had forgotten that, if I ever knew it.
Hardly a surprise that vehemence continues re Brown. Those who have never reconciled themselves to the 14th Amendment (or even to the outcome of the Civil War) Would be unlike to accept its application.
Hardly a surprise that vehemence continues re Brown. Those who have never reconciled themselves to the 14th Amendment (or even to the outcome of the Civil War) Would be unlike to accept its application.
“Brown v. Board, 9-0, was met with such vehemence that it continues to this day.”
I haven’t heard anyone complain about busing in at least two decades. Though if we tried to bring it back I bet a lot of progressives in cities would scream.
“Brown v. Board, 9-0, was met with such vehemence that it continues to this day.”
I haven’t heard anyone complain about busing in at least two decades. Though if we tried to bring it back I bet a lot of progressives in cities would scream.
“I haven’t heard anyone complain about busing in at least two decades. Though if we tried to bring it back I bet a lot of progressives in cities would scream.”
I expect this is an accurate depiction.
Which speaks to the depth of despair endemic to America for those deemed the Other.
It never stops.
This guy:
https://nypost.com/2018/07/05/white-man-calls-police-on-black-family-at-neighborhood-pool/
He couldn’t even say he was sorry. His voting record is not in evidence but it could be anything, right?
I suspect however that if he leans progressive, he’ll be voting mp in 2020, because he was publicly shamed.
America has had 242 years to get over this fucking crap.
Get over it now, because it stops now.
Or else.
“I haven’t heard anyone complain about busing in at least two decades. Though if we tried to bring it back I bet a lot of progressives in cities would scream.”
I expect this is an accurate depiction.
Which speaks to the depth of despair endemic to America for those deemed the Other.
It never stops.
This guy:
https://nypost.com/2018/07/05/white-man-calls-police-on-black-family-at-neighborhood-pool/
He couldn’t even say he was sorry. His voting record is not in evidence but it could be anything, right?
I suspect however that if he leans progressive, he’ll be voting mp in 2020, because he was publicly shamed.
America has had 242 years to get over this fucking crap.
Get over it now, because it stops now.
Or else.
Apparently, the fix was in:
https://www.balloon-juice.com/2018/07/10/trench-lawfare-open-thread-of-course-kavanaughs-a-pig-fellator-and-we-should-also-make-the-gop-deny-it/
Kennedy and his corrupt enabler son of mp’s fraud and theft at Deutsche Bank need to be physically assaulted at whatever D.C salad bar they sneeze over.
This shit stops now.
Or else.
No more.
Apparently, the fix was in:
https://www.balloon-juice.com/2018/07/10/trench-lawfare-open-thread-of-course-kavanaughs-a-pig-fellator-and-we-should-also-make-the-gop-deny-it/
Kennedy and his corrupt enabler son of mp’s fraud and theft at Deutsche Bank need to be physically assaulted at whatever D.C salad bar they sneeze over.
This shit stops now.
Or else.
No more.
I haven’t heard anyone complain about busing in at least two decades
Of course not. Charter schools have made that moot. With an assist from “home schooling” for the real hard cases. If you can avoid public schools altogether, you don’t care what their students look like.
I haven’t heard anyone complain about busing in at least two decades
Of course not. Charter schools have made that moot. With an assist from “home schooling” for the real hard cases. If you can avoid public schools altogether, you don’t care what their students look like.
The nominee appears to believe its the President who is the judge of what is constitutional or not….
https://slate.com/news-and-politics/2018/07/brett-kavanaugh-supreme-court-donald-trump-just-handed-democrats-a-gift.html
in 2011, Kavanaugh wrote in dissent that if a president takes issue with an existing law, he can simply declare it unconstitutional and refuse to enforce it. “Under the Constitution,” he wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
The nominee appears to believe its the President who is the judge of what is constitutional or not….
https://slate.com/news-and-politics/2018/07/brett-kavanaugh-supreme-court-donald-trump-just-handed-democrats-a-gift.html
in 2011, Kavanaugh wrote in dissent that if a president takes issue with an existing law, he can simply declare it unconstitutional and refuse to enforce it. “Under the Constitution,” he wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
I lived in a country like that once.
Apparently, I’m going to again.
I lived in a country like that once.
Apparently, I’m going to again.
The problem is that by repeatedly and increasingly relying on the Supreme Court for major change, it institutionally sets up conflicts to become nastier and nastier because every little win for the other side is way more entrenched than it would be for acts of Congress.
However, let’s take this statement out of the penumbra of Roe (sorry, IANAL, so I’m probably using it wrong, but I couldn’t resist) and talk about decisions like the previously mentioned Brown v. Board of Education or Loving v. Virginia (another 9-0 decision)? It seems like ‘we’ relied on the court to deal with major change because no other agent of change could step up. And the problem is not that the SC took on social change, it’s that there are no other institutional agents of change in the US. (I’m not sure about that last part, but given the narrative is always ‘why are we spending money on that’, I hope you can see where I’m coming from)
As for progressive screaming about a reinstitution of Brown, wouldn’t the screaming be because public schools can now be like this (that Hartmut flagged) and this rather than what you seem to be suggesting, that they are hypocritical?
The problem is that by repeatedly and increasingly relying on the Supreme Court for major change, it institutionally sets up conflicts to become nastier and nastier because every little win for the other side is way more entrenched than it would be for acts of Congress.
However, let’s take this statement out of the penumbra of Roe (sorry, IANAL, so I’m probably using it wrong, but I couldn’t resist) and talk about decisions like the previously mentioned Brown v. Board of Education or Loving v. Virginia (another 9-0 decision)? It seems like ‘we’ relied on the court to deal with major change because no other agent of change could step up. And the problem is not that the SC took on social change, it’s that there are no other institutional agents of change in the US. (I’m not sure about that last part, but given the narrative is always ‘why are we spending money on that’, I hope you can see where I’m coming from)
As for progressive screaming about a reinstitution of Brown, wouldn’t the screaming be because public schools can now be like this (that Hartmut flagged) and this rather than what you seem to be suggesting, that they are hypocritical?
So much for institutional agents of change….
“A Court of careerists” –
https://www.politico.com/magazine/story/2018/07/11/whats-missing-from-the-supreme-court-218967
So much for institutional agents of change….
“A Court of careerists” –
https://www.politico.com/magazine/story/2018/07/11/whats-missing-from-the-supreme-court-218967
I haven’t heard anyone complain about busing in at least two decades
to my knowledge, there hasn’t been busing in at least two decades. so, not many complaints these days.
i know ‘progressives’ who opened their homes and families to kids, and the families of kids, bused from crappy schools in poor boston neighborhoods, to the better-served schools in their nice not-poor neighborhoods. and, who maintain those relationships to this day, decades later. to everyone’s advantage.
but keep on feeding the popular national resentment of those hypocritical urban liberal elites.
the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional
i suspect this goes back to jackson’s comment about marshall in worcester v georgia – “let him enforce it!”. and persists in the practice of signing statements,
odd to hear a SCOTUS nominee endorse it.
I haven’t heard anyone complain about busing in at least two decades
to my knowledge, there hasn’t been busing in at least two decades. so, not many complaints these days.
i know ‘progressives’ who opened their homes and families to kids, and the families of kids, bused from crappy schools in poor boston neighborhoods, to the better-served schools in their nice not-poor neighborhoods. and, who maintain those relationships to this day, decades later. to everyone’s advantage.
but keep on feeding the popular national resentment of those hypocritical urban liberal elites.
the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional
i suspect this goes back to jackson’s comment about marshall in worcester v georgia – “let him enforce it!”. and persists in the practice of signing statements,
odd to hear a SCOTUS nominee endorse it.
I haven’t heard anyone complain about busing in at least two decades
https://www.csmonitor.com/USA/Education/2010/0324/Busing-to-end-in-Wake-County-N.C.-Goodbye-school-diversity
I haven’t heard anyone complain about busing in at least two decades
https://www.csmonitor.com/USA/Education/2010/0324/Busing-to-end-in-Wake-County-N.C.-Goodbye-school-diversity
So let me get this straight. We have a view (based in Marbury v Madison) that says that the Supreme Court is the final arbiter of what’s constitutional. For some period of time we’ve also had a fringe lunatic view that county (?) sheriffs are the *real* final arbiters of what the constitution means (since they swear an oath to uphold it? don’t a lot of people do that).
This is the first I’ve heard anyone saying that the president is the last word. Kind of like abolishing the reformation and reinstating the Pope as everyone’s boss.
Jesus H. So to speak.
So let me get this straight. We have a view (based in Marbury v Madison) that says that the Supreme Court is the final arbiter of what’s constitutional. For some period of time we’ve also had a fringe lunatic view that county (?) sheriffs are the *real* final arbiters of what the constitution means (since they swear an oath to uphold it? don’t a lot of people do that).
This is the first I’ve heard anyone saying that the president is the last word. Kind of like abolishing the reformation and reinstating the Pope as everyone’s boss.
Jesus H. So to speak.
Supreme Court, The Presidency, Sheriffs, all of them, are the final arbiters of what the Constitution means, according to the three of them.
All three institutions sewn up by the same minority political party. And fuck them.
Meanwhile, the legislative punks of the same rump political party were in Moscow last week consulting with Putin about what our Constitution means, if anything, in the event that the latter’s vassal in the White House takes a header.
Do the Russian members of NRA chapters in that country carry little Russian constitutions in their flak jackets and wave it around all the time.
Do American, and I use the term loosely, NRA reps visiting the Kremlin carry around both the American and Russian Constitutions and wave around one or the other according to which side of their stinking, vermin pig mouths they are talking out of?
There are Russian submarines skulking near the mouth of the Chesapeake and offshore of Mar-a-Lago that will serve as getaway cars for the republican vermin when the jig is up.
I’m having this eerie premonition recently that we are unwitting players in a game with unrevealed rules and no stated goal, like those movies in which the players think they are attending their own birthday party or a game night with the neighbors and when the dice are rolled and the blindfolds removed, it is announced to the victims … us … that America has just been a prank and we are trapped in an abattoir and dinner is us …. or the skies for months have been filled with odd cloud formations and dark portents and one morning we wake up and reptilian-type interstellar aliens are feeding on our pets.
What if “Red Dawn”, the movie that fucking conservatives thrilled to, was really about what those cuck conservatives were going to pull off one day.
We can shoot our way out of this, but it needs to start soon.
Supreme Court, The Presidency, Sheriffs, all of them, are the final arbiters of what the Constitution means, according to the three of them.
All three institutions sewn up by the same minority political party. And fuck them.
Meanwhile, the legislative punks of the same rump political party were in Moscow last week consulting with Putin about what our Constitution means, if anything, in the event that the latter’s vassal in the White House takes a header.
Do the Russian members of NRA chapters in that country carry little Russian constitutions in their flak jackets and wave it around all the time.
Do American, and I use the term loosely, NRA reps visiting the Kremlin carry around both the American and Russian Constitutions and wave around one or the other according to which side of their stinking, vermin pig mouths they are talking out of?
There are Russian submarines skulking near the mouth of the Chesapeake and offshore of Mar-a-Lago that will serve as getaway cars for the republican vermin when the jig is up.
I’m having this eerie premonition recently that we are unwitting players in a game with unrevealed rules and no stated goal, like those movies in which the players think they are attending their own birthday party or a game night with the neighbors and when the dice are rolled and the blindfolds removed, it is announced to the victims … us … that America has just been a prank and we are trapped in an abattoir and dinner is us …. or the skies for months have been filled with odd cloud formations and dark portents and one morning we wake up and reptilian-type interstellar aliens are feeding on our pets.
What if “Red Dawn”, the movie that fucking conservatives thrilled to, was really about what those cuck conservatives were going to pull off one day.
We can shoot our way out of this, but it needs to start soon.
http://theweek.com/articles/783966/most-useless-part-resistance?utm_source=dlvr.it&utm_medium=twitter
http://theweek.com/articles/783966/most-useless-part-resistance?utm_source=dlvr.it&utm_medium=twitter
https://fivethirtyeight.com/features/the-abortion-debate-isnt-as-partisan-as-politicians-make-it-seem/
https://fivethirtyeight.com/features/the-abortion-debate-isnt-as-partisan-as-politicians-make-it-seem/
Re HSH’s link, I think the only way out of the box we have gotten ourselves into is to change something, so that the most extreme members do not drive the selection of candidates. For example, California is trying “top two open primaries” to achieve that . . . with a little success but not a lot.
The other alternative that occurs to me is to try something like mandatory voting. A big part of the reason that the extremists drive candidate selection is the very low turnout in primary elections. The downside of that, of course, is that you get a lot of very uninformed people voting — on who knows what basis. On the other hand, maybe it would be worthwhile seeing what a different set of problems look like.
Anybody with another option, please share.
Re HSH’s link, I think the only way out of the box we have gotten ourselves into is to change something, so that the most extreme members do not drive the selection of candidates. For example, California is trying “top two open primaries” to achieve that . . . with a little success but not a lot.
The other alternative that occurs to me is to try something like mandatory voting. A big part of the reason that the extremists drive candidate selection is the very low turnout in primary elections. The downside of that, of course, is that you get a lot of very uninformed people voting — on who knows what basis. On the other hand, maybe it would be worthwhile seeing what a different set of problems look like.
Anybody with another option, please share.
Mandatory voting might provide the impetus for at least some people to become more informed. I don’t think the amount of “catch up” they’d have to play would be all that much to meet the average levels of information of the people who are already participating.
Mandatory voting might provide the impetus for at least some people to become more informed. I don’t think the amount of “catch up” they’d have to play would be all that much to meet the average levels of information of the people who are already participating.
Taking this only slightly sideways (since we are talking about SCOTUS), why does everyone seem to be almost totally focused on Senator Collins when it comes to blocking Kavanaugh? It seems like McConnell would have less leverage on Murkowski. After all, she has already demonstrated that the far right can primary her (successfully!) and she can still get reelected running as an independent.
Taking this only slightly sideways (since we are talking about SCOTUS), why does everyone seem to be almost totally focused on Senator Collins when it comes to blocking Kavanaugh? It seems like McConnell would have less leverage on Murkowski. After all, she has already demonstrated that the far right can primary her (successfully!) and she can still get reelected running as an independent.
wj,
It’s because Collins has fooled people into considering her a “moderate” the same way Paul Ryan fooled people into considering him a policy wonk.
As J.R. Ewing once pointed out, “Once you can fake sincerity, the rest is a piece of cake”.
–TP
wj,
It’s because Collins has fooled people into considering her a “moderate” the same way Paul Ryan fooled people into considering him a policy wonk.
As J.R. Ewing once pointed out, “Once you can fake sincerity, the rest is a piece of cake”.
–TP
why is anyone seem focused at all on Collins or Murkowski or any of them? barring a surprise pedophilia conviction, Kavanaugh is going to be confirmed. it’s a done deal. it became inevitable Nov 8, 2016.
why is anyone seem focused at all on Collins or Murkowski or any of them? barring a surprise pedophilia conviction, Kavanaugh is going to be confirmed. it’s a done deal. it became inevitable Nov 8, 2016.
Cleek, because even a slim chance is still a chance. (Would you have expected McCain to stop the bill to repeal Obamacare? Seriously?) When it’s all you got, you try for the long shot.
Cleek, because even a slim chance is still a chance. (Would you have expected McCain to stop the bill to repeal Obamacare? Seriously?) When it’s all you got, you try for the long shot.
Kavanaugh may be a done deal, but the re-election of GOP senators is not. Making them OWN their support of He, Trump’s toady is still useful.
–TP
Kavanaugh may be a done deal, but the re-election of GOP senators is not. Making them OWN their support of He, Trump’s toady is still useful.
–TP
https://www.thedailybeast.com/brett-kavanaugh-thinks-banning-assault-rifles-would-be-like-banning-speech?via=newsletter&source=DDMorning
That’s funny, because I view bullets fired automatically out of the barrels of assault weapons as protected, free political speech in the shaping of policy.
https://www.thedailybeast.com/brett-kavanaugh-thinks-banning-assault-rifles-would-be-like-banning-speech?via=newsletter&source=DDMorning
That’s funny, because I view bullets fired automatically out of the barrels of assault weapons as protected, free political speech in the shaping of policy.
From Kavanaugh’s opinion, cited in the count’s link:
Say that from 100 yards away.
From Kavanaugh’s opinion, cited in the count’s link:
Say that from 100 yards away.
….so that the most extreme members do not drive the selection of candidates.
Given how politics ACTUALLY takes place in this country this “terrible” outcome, I would aver, occurs mainly on the right side of our lamentably constrained political spectrum.
As an aside, top 2 primaries are just another stupid way to try to take politics out of, well, politics. Dumb and anti-democratic. It’s hard to beat that.
….so that the most extreme members do not drive the selection of candidates.
Given how politics ACTUALLY takes place in this country this “terrible” outcome, I would aver, occurs mainly on the right side of our lamentably constrained political spectrum.
As an aside, top 2 primaries are just another stupid way to try to take politics out of, well, politics. Dumb and anti-democratic. It’s hard to beat that.
I view bullets fired automatically out of the barrels of assault weapons as protected, free political speech in the shaping of policy.
Which would clearly mean that Assault with a Deadly Weapon would cease to be a crime. (Although simple assault, ie without a weapon, could still be a no-no.)
I view bullets fired automatically out of the barrels of assault weapons as protected, free political speech in the shaping of policy.
Which would clearly mean that Assault with a Deadly Weapon would cease to be a crime. (Although simple assault, ie without a weapon, could still be a no-no.)
There are places in the US were toy guns are illegal but real ones aren’t.
There are places in the US were toy guns are illegal but real ones aren’t.
There are places in the US were toy guns are illegal but real ones aren’t.
Cops find it somewhat embarrassing when they shoot someone with a toy rather than a real gun.
There are places in the US were toy guns are illegal but real ones aren’t.
Cops find it somewhat embarrassing when they shoot someone with a toy rather than a real gun.
Fossil Fuel Industry
Forgot to change that… :}
Fossil Fuel Industry
Forgot to change that… :}
wj: “The other alternative that occurs to me is to try something like mandatory voting.”
First result: voters enraged by being told that they MUST vote immediately voting out the party that imposed mandatory voting.
It would work great, if mandatory voting had been instituted 100 years ago.
Quick! To the Time Machine!!
wj: “The other alternative that occurs to me is to try something like mandatory voting.”
First result: voters enraged by being told that they MUST vote immediately voting out the party that imposed mandatory voting.
It would work great, if mandatory voting had been instituted 100 years ago.
Quick! To the Time Machine!!
First result: voters enraged by being told that they MUST vote immediately voting out the party that imposed mandatory voting.
Somehow I just assumed that it got established via an initiative, rather than by the legislature. Comes of being from California I suppose.
First result: voters enraged by being told that they MUST vote immediately voting out the party that imposed mandatory voting.
Somehow I just assumed that it got established via an initiative, rather than by the legislature. Comes of being from California I suppose.
Charles WT, could I ask you not to change your nick like that again? As my mom used to say, it’s all fun and games until someone gets their eye poked out.
I realize that this is not something we’ve never said was wrong, but it seems that you changed your nick to make an argument, albeit humorous, that conforms with your libertarian outlook. Beyond any interrogation of your motives, if it becomes a thing, then mods are going to have to spend time going into the dashboard to figure out who is saying what. So please don’t do it again. Thanks.
Charles WT, could I ask you not to change your nick like that again? As my mom used to say, it’s all fun and games until someone gets their eye poked out.
I realize that this is not something we’ve never said was wrong, but it seems that you changed your nick to make an argument, albeit humorous, that conforms with your libertarian outlook. Beyond any interrogation of your motives, if it becomes a thing, then mods are going to have to spend time going into the dashboard to figure out who is saying what. So please don’t do it again. Thanks.
Delurking.
What Seb said. And most of what russell said. As usual, he’s being reasonable.
I even agree with Tony P. on Kavenaugh’s statement. Good grief. But you lost me,Tony, when you said “Franken.”
What I would ask to the general body of “originalist” detractors is what criteria, then, governs SCOTUS decisions? What is your theory of interpretation? Is it Ugh’s “anything goes in light of the changing standards of decency of society?” Not that I hear Ugh necessarily saying that is the way it SHOULD be vs. the way it actually is.
I know Scalia is probably anathema here, but do yourself a favor and read his speech on this topic and then decide for yourself. I don’t agree with every decision he made. I know you don’t either. But the speech is entertaining and thought provoking regardless of where you fall on the spectrum of Constitutional interpretation.
We used the amendment process until 1971. Then Roe happened. Not commenting on Roe per se, but the ERA was proposed (just prior?) and then never was adopted.
If we don’t go back to the amendment process, then we will be ruled on some issues by an unelected council of 9. Unless someone disagrees, which leads me to . . .
This is the first I’ve heard anyone saying that the president is the last word. Kind of like abolishing the reformation and reinstating the Pope as everyone’s boss.
Or going back to Thomas Jefferson and Abraham Lincoln. Hamilton liked judicial review, Jefferson not so much. Jefferson liked the states deciding (funny thought that, states being sovereigns) and espoused the three branches being equal. I don’t know that he would have said the President has the last word, but he very well might have said all three branches have the last word.
I like judicial review as a general proposition, but I think that a situation could come up of sufficient import that a president or congress or a state could simply say “no” as a matter of principle. Wait, some of those situations have actually come up . . .
I can tell you that the authors’ assumption at the time the document was written was that only adult white men, preferably property owners, would vote. Take it from there.
But the document has been amended. For voting rights, the question for originalists would be 1920 for women, and the 60’s? for the voting age, 1868 for the 14th A, etc. You are not stuck with 1789 (unless it hasn’t been amended).
I agree, too, that each Justice will be influenced by his/her life experience but that doesn’t mean we throw the whole thing to the wind. Unless the Constitution is at least somewhat “fixed”, and we start with that proposition, the whole system of government falls apart at least on an intellectual level, IMHO. That it has not already is that, as some have said, many, many issues do not come before the court because there is general agreement among the people.
Delurking.
What Seb said. And most of what russell said. As usual, he’s being reasonable.
I even agree with Tony P. on Kavenaugh’s statement. Good grief. But you lost me,Tony, when you said “Franken.”
What I would ask to the general body of “originalist” detractors is what criteria, then, governs SCOTUS decisions? What is your theory of interpretation? Is it Ugh’s “anything goes in light of the changing standards of decency of society?” Not that I hear Ugh necessarily saying that is the way it SHOULD be vs. the way it actually is.
I know Scalia is probably anathema here, but do yourself a favor and read his speech on this topic and then decide for yourself. I don’t agree with every decision he made. I know you don’t either. But the speech is entertaining and thought provoking regardless of where you fall on the spectrum of Constitutional interpretation.
We used the amendment process until 1971. Then Roe happened. Not commenting on Roe per se, but the ERA was proposed (just prior?) and then never was adopted.
If we don’t go back to the amendment process, then we will be ruled on some issues by an unelected council of 9. Unless someone disagrees, which leads me to . . .
This is the first I’ve heard anyone saying that the president is the last word. Kind of like abolishing the reformation and reinstating the Pope as everyone’s boss.
Or going back to Thomas Jefferson and Abraham Lincoln. Hamilton liked judicial review, Jefferson not so much. Jefferson liked the states deciding (funny thought that, states being sovereigns) and espoused the three branches being equal. I don’t know that he would have said the President has the last word, but he very well might have said all three branches have the last word.
I like judicial review as a general proposition, but I think that a situation could come up of sufficient import that a president or congress or a state could simply say “no” as a matter of principle. Wait, some of those situations have actually come up . . .
I can tell you that the authors’ assumption at the time the document was written was that only adult white men, preferably property owners, would vote. Take it from there.
But the document has been amended. For voting rights, the question for originalists would be 1920 for women, and the 60’s? for the voting age, 1868 for the 14th A, etc. You are not stuck with 1789 (unless it hasn’t been amended).
I agree, too, that each Justice will be influenced by his/her life experience but that doesn’t mean we throw the whole thing to the wind. Unless the Constitution is at least somewhat “fixed”, and we start with that proposition, the whole system of government falls apart at least on an intellectual level, IMHO. That it has not already is that, as some have said, many, many issues do not come before the court because there is general agreement among the people.
So please don’t do it again. Thanks.
No problem. I’ve only done once or twice before over the years.
So please don’t do it again. Thanks.
No problem. I’ve only done once or twice before over the years.
I don’t know that he would have said the President has the last word, but he very well might have said all three branches have the last word.
And if two of the branches disagree about what the last word should be, then what? A shooting war?
I don’t see how it can work without some entity having the last word. Speaking as a gay person, I would prefer it not be the majority of the electorate.
I don’t know that he would have said the President has the last word, but he very well might have said all three branches have the last word.
And if two of the branches disagree about what the last word should be, then what? A shooting war?
I don’t see how it can work without some entity having the last word. Speaking as a gay person, I would prefer it not be the majority of the electorate.
What I would ask to the general body of “originalist” detractors is what criteria, then, governs SCOTUS decisions? What is your theory of interpretation?
In reply, I would offer this and this.
Going a bit further afield Shelby County or Bush v Gore would seem to indicate that the practitioners of “originalism” don’t have too many scruples when it comes to tossing it aside when deemed necessary.
We used the amendment process until 1971.
We have used a variety of approaches to deciding vexing constitutional issues, up to and including a bloody civil war. So what are you trying to say here….that women’s and gay rights should have waited for an Amendment? Given a fairly evenly divided polity split along increasingly ideological lines, politics will work it way.
It always has.
Thanks.
What I would ask to the general body of “originalist” detractors is what criteria, then, governs SCOTUS decisions? What is your theory of interpretation?
In reply, I would offer this and this.
Going a bit further afield Shelby County or Bush v Gore would seem to indicate that the practitioners of “originalism” don’t have too many scruples when it comes to tossing it aside when deemed necessary.
We used the amendment process until 1971.
We have used a variety of approaches to deciding vexing constitutional issues, up to and including a bloody civil war. So what are you trying to say here….that women’s and gay rights should have waited for an Amendment? Given a fairly evenly divided polity split along increasingly ideological lines, politics will work it way.
It always has.
Thanks.
Forgot to change that… :}
I knew that was you. ;^)
Forgot to change that… :}
I knew that was you. ;^)
“Given a fairly evenly divided polity split along increasingly ideological lines, politics will work it way”
Given a fairly evenly divided polity split, wouldn’t it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?
“Given a fairly evenly divided polity split along increasingly ideological lines, politics will work it way”
Given a fairly evenly divided polity split, wouldn’t it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?
Given a fairly evenly divided polity split, wouldn’t it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?
So in some alternative history where the Civil War didn’t happen, equal rights for African-Americans should have waited until a large majority was in favor?
Given a fairly evenly divided polity split, wouldn’t it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?
So in some alternative history where the Civil War didn’t happen, equal rights for African-Americans should have waited until a large majority was in favor?
Never mind, of course, the preliminary step of abolishing slavery.
Never mind, of course, the preliminary step of abolishing slavery.
I mean, what’s the point of the Bill of Rights if no decisions can be made in relation to whether someone’s rights have been violated until a super-majority of citizens are in agreement about the violation?
I mean, what’s the point of the Bill of Rights if no decisions can be made in relation to whether someone’s rights have been violated until a super-majority of citizens are in agreement about the violation?
Part of the point of the Constitution was to protect the nation, and the people, from the well-known excesses of mob rule. That is, it was a recognition that just because a majority hold an opinion that doesn’t necessarily mean that it should be enforced on everyone. Which is why we occasionally get Supreme Court rulings that are a long way from achieving majority support.
What’s rather interesting is how a Court ruling which is nothing like a majority opinion at the time, can rapidly become one. Consider how incredibly short a time it took to go from homosexual behavior being flat illegal in a large swath of the nation (pre Lawrence v Texas) to gay marriage being not only legal but having 2/3 majority support (which it does today). Would that have happened, in anything like that timeframe, absent Supreme Court rulings? I beg leave to doubt it.
Part of the point of the Constitution was to protect the nation, and the people, from the well-known excesses of mob rule. That is, it was a recognition that just because a majority hold an opinion that doesn’t necessarily mean that it should be enforced on everyone. Which is why we occasionally get Supreme Court rulings that are a long way from achieving majority support.
What’s rather interesting is how a Court ruling which is nothing like a majority opinion at the time, can rapidly become one. Consider how incredibly short a time it took to go from homosexual behavior being flat illegal in a large swath of the nation (pre Lawrence v Texas) to gay marriage being not only legal but having 2/3 majority support (which it does today). Would that have happened, in anything like that timeframe, absent Supreme Court rulings? I beg leave to doubt it.
bc: But you lost me,Tony, when you said “Franken.”
bc,
Nice to see you again. I have missed your particular brand of wrongness 🙂
If Al Franken puts you off, can I assume that you find He, Trump deplorable? Or are you, like Marty, willing to overlook his 10xFranken^2 moral shortcomings in light of His “(Republican) policies”?
Since you ask “what criteria, then, governs SCOTUS decisions?” I have to ask whether you mean “what criteria should” or “what criteria do” govern SCOTUS decisions. And when the decision is 5-4, how sure can we be that “SCOTUS” got it right by whatever criterion you (or I) consider “right”?
It amazes me that both conservatives and liberals can make a big fat hairy deal about who gets to be a Justice, if The Law is so clear-cut that there is a single correct way to interpret it.
I mean, if He, Trump’s “base” doesn’t believe that a Federalist-Society-approved nominee is “automatically” a vote against Roe (and unions, and voting rights, and the ACA), then why bother stealing a nomination from Obama? why object to He, Trump picking Kennedy’s successor by drawing names from a hat? why make believe that lying flattery (of He, Trump no less!) is not clear proof that Kavanaugh has no claim to “judicial temperament”?
–TP
bc: But you lost me,Tony, when you said “Franken.”
bc,
Nice to see you again. I have missed your particular brand of wrongness 🙂
If Al Franken puts you off, can I assume that you find He, Trump deplorable? Or are you, like Marty, willing to overlook his 10xFranken^2 moral shortcomings in light of His “(Republican) policies”?
Since you ask “what criteria, then, governs SCOTUS decisions?” I have to ask whether you mean “what criteria should” or “what criteria do” govern SCOTUS decisions. And when the decision is 5-4, how sure can we be that “SCOTUS” got it right by whatever criterion you (or I) consider “right”?
It amazes me that both conservatives and liberals can make a big fat hairy deal about who gets to be a Justice, if The Law is so clear-cut that there is a single correct way to interpret it.
I mean, if He, Trump’s “base” doesn’t believe that a Federalist-Society-approved nominee is “automatically” a vote against Roe (and unions, and voting rights, and the ACA), then why bother stealing a nomination from Obama? why object to He, Trump picking Kennedy’s successor by drawing names from a hat? why make believe that lying flattery (of He, Trump no less!) is not clear proof that Kavanaugh has no claim to “judicial temperament”?
–TP
The problem with originalism is originalists (and that they think they’re divining something more meaningful than non-originalists). Language changes, circumstances change, and there was some degree of amibiguity on day one. Originalists overestimate their own ability to navigate their way through these obstacles to arrive at the one true original intent (as it should apply today). Maybe they should hold a seance.
The problem with originalism is originalists (and that they think they’re divining something more meaningful than non-originalists). Language changes, circumstances change, and there was some degree of amibiguity on day one. Originalists overestimate their own ability to navigate their way through these obstacles to arrive at the one true original intent (as it should apply today). Maybe they should hold a seance.
What is your theory of interpretation?
The question I ask is, what is the principle being expressed?
It’s like reading the old Testament, except maybe adjusted by an order of magnitude in terms of the time scale.
The Torah tells me I shouldn’t muzzle the ox while it’s threshing. I don’t have an ox, and neither I nor my hypothetical ox have anything that needs threshing.
Nonetheless, I understand the principle.
It ain’t rocket science. And it is by god as honest as any other approach, and far more so than folks who say it doesn’t apply to me because I have no ox.
good to see you around the way!
as an aside, I have to ask: anybody besides me wondering if the freaking potus is being run by vladimir putin?
might be so, might not be, but it sure as hell is among the simpler explanations.
Numquam ponenda est pluralitas sine necessitate
What is your theory of interpretation?
The question I ask is, what is the principle being expressed?
It’s like reading the old Testament, except maybe adjusted by an order of magnitude in terms of the time scale.
The Torah tells me I shouldn’t muzzle the ox while it’s threshing. I don’t have an ox, and neither I nor my hypothetical ox have anything that needs threshing.
Nonetheless, I understand the principle.
It ain’t rocket science. And it is by god as honest as any other approach, and far more so than folks who say it doesn’t apply to me because I have no ox.
good to see you around the way!
as an aside, I have to ask: anybody besides me wondering if the freaking potus is being run by vladimir putin?
might be so, might not be, but it sure as hell is among the simpler explanations.
Numquam ponenda est pluralitas sine necessitate
I think a more illuminating question might be if you are a living constitutionalist, how do you know which times the originalists have gotten it wrong as opposed to the times they get it right?
I think a more illuminating question might be if you are a living constitutionalist, how do you know which times the originalists have gotten it wrong as opposed to the times they get it right?
the sad thing is, if that’s what’s going on, i’m not sure he even knows it.
the sad thing is, if that’s what’s going on, i’m not sure he even knows it.
I think we all know that sometimes a judge knows what he wants to do and backfills it in suspect ways. With originalists you can perceive that hypocrisy in certain ways with the text.
So I think the illuminating question is “how can you tell the difference between well reasoned and backfilled motivated rulings in a living constitutionalist?
I think we all know that sometimes a judge knows what he wants to do and backfills it in suspect ways. With originalists you can perceive that hypocrisy in certain ways with the text.
So I think the illuminating question is “how can you tell the difference between well reasoned and backfilled motivated rulings in a living constitutionalist?
I think a more illuminating question might be if you are a living constitutionalist, how do you know which times the originalists have gotten it wrong as opposed to the times they get it right?
but not vice versa?
because the strict constructionists are always so rigorously faithful to the text?
what does a 240 year old document mean? if your answer is ‘just what it says’, you beg the question.
I think a more illuminating question might be if you are a living constitutionalist, how do you know which times the originalists have gotten it wrong as opposed to the times they get it right?
but not vice versa?
because the strict constructionists are always so rigorously faithful to the text?
what does a 240 year old document mean? if your answer is ‘just what it says’, you beg the question.
Consider how incredibly short a time it took to go from homosexual behavior being flat illegal in a large swath of the nation (pre Lawrence v Texas) to gay marriage being not only legal but having 2/3 majority support (which it does today).
That’s because homosexuality cuts across race and class boundaries. As an example, Tim Cook was not going to suddenly reveal that he was African American and he was born and raised in poverty. Or that he was a single mother. In that sense, there was already this built in portion of the population that would, when the time was right, be able to act in ways that would normalize it, imho.
Consider how incredibly short a time it took to go from homosexual behavior being flat illegal in a large swath of the nation (pre Lawrence v Texas) to gay marriage being not only legal but having 2/3 majority support (which it does today).
That’s because homosexuality cuts across race and class boundaries. As an example, Tim Cook was not going to suddenly reveal that he was African American and he was born and raised in poverty. Or that he was a single mother. In that sense, there was already this built in portion of the population that would, when the time was right, be able to act in ways that would normalize it, imho.
“anybody besides me wondering if the freaking potus is being run by vladimir putin?”
Yes. 63 million Americans who voted for him and they like it. He announced to them and the country in a campaign stop that he was requesting the Kremlin’s help in outing Clinton’s emails.
Republican Party politicians know it and are fine with it.
As to when some right should become constitutionally ratified, it took several hundred thousand years before a suitable majority came around to the idea of free speech. Before that, everyone seemed satisfied with the “STFU or we’ll cut your tongue out rule”.
They did polls in 900 B.C. and cautious conservative shitheads said, “look, I don’t like having my tongue cut out any more than the next guy, but forbidding the majority to do it seems like regulatory overkill to me. This interview is off the record, I hope.”
Now it took only some 400 hundred years from the invention of the gun to get that right enshrined in the Constitution, because shooting people is so much cooler and efficient than cutting their tongues out and more fun than talking and the written word, for that matter.
Both of course were way more important and mutually agreed upon than say, giving niggers and wogs any rights. Or those dickless creatures, women, and even now I’d say a sizable minority is not fully on board with any of those more recent innovations. Seems we were hasty, I spose in giving those human beings any rights.
Which is why I favor telling conservatives to STFU and then cutting their tongues out.
Because the human race with them dragging their heels on every fucking thing is full of dog shit.
“anybody besides me wondering if the freaking potus is being run by vladimir putin?”
Yes. 63 million Americans who voted for him and they like it. He announced to them and the country in a campaign stop that he was requesting the Kremlin’s help in outing Clinton’s emails.
Republican Party politicians know it and are fine with it.
As to when some right should become constitutionally ratified, it took several hundred thousand years before a suitable majority came around to the idea of free speech. Before that, everyone seemed satisfied with the “STFU or we’ll cut your tongue out rule”.
They did polls in 900 B.C. and cautious conservative shitheads said, “look, I don’t like having my tongue cut out any more than the next guy, but forbidding the majority to do it seems like regulatory overkill to me. This interview is off the record, I hope.”
Now it took only some 400 hundred years from the invention of the gun to get that right enshrined in the Constitution, because shooting people is so much cooler and efficient than cutting their tongues out and more fun than talking and the written word, for that matter.
Both of course were way more important and mutually agreed upon than say, giving niggers and wogs any rights. Or those dickless creatures, women, and even now I’d say a sizable minority is not fully on board with any of those more recent innovations. Seems we were hasty, I spose in giving those human beings any rights.
Which is why I favor telling conservatives to STFU and then cutting their tongues out.
Because the human race with them dragging their heels on every fucking thing is full of dog shit.
Russell, I think you’re misunderstanding me. I’m asking how a living constitutionalist knows that a ruling is incorrect. They see a ruling they don’t agree with from the Supreme Court. They think that ruling is wrong. Why do they think that? One of their big tropes is “society has changed”. Can it change in ways that disagree with their favored political outcomes? How would they know that has happened rather than “we just don’t happen to have 5 votes today”?
Russell, I think you’re misunderstanding me. I’m asking how a living constitutionalist knows that a ruling is incorrect. They see a ruling they don’t agree with from the Supreme Court. They think that ruling is wrong. Why do they think that? One of their big tropes is “society has changed”. Can it change in ways that disagree with their favored political outcomes? How would they know that has happened rather than “we just don’t happen to have 5 votes today”?
So I think the illuminating question is “how can you tell the difference between well reasoned and backfilled motivated rulings in a living constitutionalist?
Is it consistent with the principle that is expressed in the text, or not.
Ask me 100 more times, and that will be my answer.
live by the letter, or live by the spirit. if you live by the spirit, you are vulnerable to taking liberties with the text. live by the letter, you are vulnerable to straining out a gnat and swallowing a camel.
which suits you better? which risk seems less harmful to you?
that’s the path you should take.
if folks prefer the letter of the law, that’s fine. just don’t tell me it’s any more honest or authentic of a reading than the spirit of the law.
it’s not.
my approach to interpretation is: what is the principle being expressed in the text?
it’s a perfectly reasonable approach.
So I think the illuminating question is “how can you tell the difference between well reasoned and backfilled motivated rulings in a living constitutionalist?
Is it consistent with the principle that is expressed in the text, or not.
Ask me 100 more times, and that will be my answer.
live by the letter, or live by the spirit. if you live by the spirit, you are vulnerable to taking liberties with the text. live by the letter, you are vulnerable to straining out a gnat and swallowing a camel.
which suits you better? which risk seems less harmful to you?
that’s the path you should take.
if folks prefer the letter of the law, that’s fine. just don’t tell me it’s any more honest or authentic of a reading than the spirit of the law.
it’s not.
my approach to interpretation is: what is the principle being expressed in the text?
it’s a perfectly reasonable approach.
When Abigail Adams protesteth too much that American citizens with vaginas should have the right to vote, and hubby John Adams said “Not gonna happen, cupcake, the big swinging dicks down at the bird and bee ale house won’t have it” she should have used the full force of the already ratified Second Amendment and shot him dead in his sleep, and then paid a visit to the alehouse and taken care of business there too.
One common nickname for a shotgun is “The Convincer”. Seems more fittingly First Amendment.
By the way, the naming of guns has always been a thing, but did you know there is now a trend in America of naming new-born children with gun-like names, like “Wesson” and “Ruger”, and “Bullet”.
In a few short years, kids with normal politically correct parents and names will be sitting next to kids named “Trigger”, and “Shooter” in study hall, and maybe have a heads-up on which spawn of republican subhuman vermin may be about to slaughter them.
“Yes, Boltaction Shuvulski was a quiet sort and kept to himself pretty much. He occasionally smelled of gunpowder, but other than that, I can’t recall any red flags, well, except for the red flags in his yard, and on his truck and on his t-shirt.”
When Abigail Adams protesteth too much that American citizens with vaginas should have the right to vote, and hubby John Adams said “Not gonna happen, cupcake, the big swinging dicks down at the bird and bee ale house won’t have it” she should have used the full force of the already ratified Second Amendment and shot him dead in his sleep, and then paid a visit to the alehouse and taken care of business there too.
One common nickname for a shotgun is “The Convincer”. Seems more fittingly First Amendment.
By the way, the naming of guns has always been a thing, but did you know there is now a trend in America of naming new-born children with gun-like names, like “Wesson” and “Ruger”, and “Bullet”.
In a few short years, kids with normal politically correct parents and names will be sitting next to kids named “Trigger”, and “Shooter” in study hall, and maybe have a heads-up on which spawn of republican subhuman vermin may be about to slaughter them.
“Yes, Boltaction Shuvulski was a quiet sort and kept to himself pretty much. He occasionally smelled of gunpowder, but other than that, I can’t recall any red flags, well, except for the red flags in his yard, and on his truck and on his t-shirt.”
Actual people are not people anymore.
Corporations, money, algorithms, and guns have personhood.
Actual people are not people anymore.
Corporations, money, algorithms, and guns have personhood.
Language is not mathematics; it is a slippery thing at the best of times. The law is also not mathematics, including the Constitution. Life itself is slippery, complicated, and rife with gray areas and paradoxes.
I.e., there is ample room for interpretation.
My work involves numbers, lots and lots of numbers, all related to cost of living in cities all over the world. And guess what: despite what I just implied about math, even numbers are slippery! You have to make assumptions and trade-offs, and figure out how to compare unlike things as best you can. Since our numbers are used for payroll purposes, there are issues of fairness as well. Even here there’s plenty of room for interpretation and disagreement.
I am too tired, both literally and in terms of my ability to engage with this topic, to draw the explicit connection between all this slipperiness and all these shades of gray on the one hand, and the debate about originalism vs living constitutionalism on the other, but maybe it’s obvious enough. I feel like the argument is a weird echo or mirror of exactly the kind of thing all the justices do all the time — whatever else they may *say* they’re doing.
Maybe it’s just my political bias, but I get the sense that the originalists are more hypocritical, and I would respect them more if they would just be honest about what they’re really doing. Kind of like I’d respect the likes of Susan Collins more if she’d just stop obfuscating and tell the truth.
Language is not mathematics; it is a slippery thing at the best of times. The law is also not mathematics, including the Constitution. Life itself is slippery, complicated, and rife with gray areas and paradoxes.
I.e., there is ample room for interpretation.
My work involves numbers, lots and lots of numbers, all related to cost of living in cities all over the world. And guess what: despite what I just implied about math, even numbers are slippery! You have to make assumptions and trade-offs, and figure out how to compare unlike things as best you can. Since our numbers are used for payroll purposes, there are issues of fairness as well. Even here there’s plenty of room for interpretation and disagreement.
I am too tired, both literally and in terms of my ability to engage with this topic, to draw the explicit connection between all this slipperiness and all these shades of gray on the one hand, and the debate about originalism vs living constitutionalism on the other, but maybe it’s obvious enough. I feel like the argument is a weird echo or mirror of exactly the kind of thing all the justices do all the time — whatever else they may *say* they’re doing.
Maybe it’s just my political bias, but I get the sense that the originalists are more hypocritical, and I would respect them more if they would just be honest about what they’re really doing. Kind of like I’d respect the likes of Susan Collins more if she’d just stop obfuscating and tell the truth.
By the way, Ugh, from the OP:
He (and for all but 3 justices it has been “he”)
Um, am I too tired to interpret sentences correctly, or is that a typo? Or are you from one of those tribes that doesn’t count beyond three?
By the way, Ugh, from the OP:
He (and for all but 3 justices it has been “he”)
Um, am I too tired to interpret sentences correctly, or is that a typo? Or are you from one of those tribes that doesn’t count beyond three?
Wondering, a bit related to my 11:04: how does an appeal to the strict text of a document written 240 years ago help us with questions about, say, the internet?
Wondering, a bit related to my 11:04: how does an appeal to the strict text of a document written 240 years ago help us with questions about, say, the internet?
“Is it consistent with the principle that is expressed in the text, or not.”
I think that is a fine statement of intention. It doesn’t really seem that is how the judges we think of as living constitutionalists operate.
For example from the 5th amendment “nor shall private property be taken for public use, without just compensation”.
Justice Stevens, Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer think that means that taking property via eminent domain to give to a private developer doesn’t violate that. (Kelo v. City of New London). That group includes zero textualist, and all of the living constitutionalist justices of the time.
“Is it consistent with the principle that is expressed in the text, or not.”
I think that is a fine statement of intention. It doesn’t really seem that is how the judges we think of as living constitutionalists operate.
For example from the 5th amendment “nor shall private property be taken for public use, without just compensation”.
Justice Stevens, Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer think that means that taking property via eminent domain to give to a private developer doesn’t violate that. (Kelo v. City of New London). That group includes zero textualist, and all of the living constitutionalist justices of the time.
If you take private property via eminent domain, and don’t pay the owner for it, then you’ve violated the 5th Amendment. If you pay for it, the only problem is with determining “just compensation.” If you can make a case that the government paid market rate, again you’re OK.
Now the “giving to another private party” part, once the government owns it, is a different issue. It’s probably stupid if the transfer isn’t at market rate. Stupid, possibly in violation of various laws (depending on where it is), . . . but not unconstitutional.
If you take private property via eminent domain, and don’t pay the owner for it, then you’ve violated the 5th Amendment. If you pay for it, the only problem is with determining “just compensation.” If you can make a case that the government paid market rate, again you’re OK.
Now the “giving to another private party” part, once the government owns it, is a different issue. It’s probably stupid if the transfer isn’t at market rate. Stupid, possibly in violation of various laws (depending on where it is), . . . but not unconstitutional.
Wj, well the full phrase is “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'”
I don’t think your reading really gets it (certainly not in the spirit of reading that russell is talking about). You can take property FOR PUBLIC USE if you pay for it. Making a park is public use. Making a freeway is public use. There are a very large number of public uses. But not everything is a public use. Giving it to some other private owner is almost the definition of “not public use”.
Wj, well the full phrase is “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'”
I don’t think your reading really gets it (certainly not in the spirit of reading that russell is talking about). You can take property FOR PUBLIC USE if you pay for it. Making a park is public use. Making a freeway is public use. There are a very large number of public uses. But not everything is a public use. Giving it to some other private owner is almost the definition of “not public use”.
Russell, I think you’re misunderstanding me. I’m asking how a living constitutionalist knows that a ruling is incorrect. They see a ruling they don’t agree with from the Supreme Court. They think that ruling is wrong. Why do they think that?
One could ask exactly the same question of ‘originalists’.
Look at their actual decisions, rather than the philosophical film flam they claim as principle, and is is pretty well impossible to discern anything other than adherence to present day conservative dogma.
It is perfectly reasonable as a matter of principle to object to a politically activist court, but to claim that one side is somehow purer than the other in this respect has little or no basis.
Russell, I think you’re misunderstanding me. I’m asking how a living constitutionalist knows that a ruling is incorrect. They see a ruling they don’t agree with from the Supreme Court. They think that ruling is wrong. Why do they think that?
One could ask exactly the same question of ‘originalists’.
Look at their actual decisions, rather than the philosophical film flam they claim as principle, and is is pretty well impossible to discern anything other than adherence to present day conservative dogma.
It is perfectly reasonable as a matter of principle to object to a politically activist court, but to claim that one side is somehow purer than the other in this respect has little or no basis.
Wondering, a bit related to my 11:04: how does an appeal to the strict text of a document written 240 years ago help us with questions about, say, the internet?
I’d say, ask an orthodox rabbi. E.g., a light switch is the modern equivalent of fire, so do not flip it on the Sabbath. 😉
Wondering, a bit related to my 11:04: how does an appeal to the strict text of a document written 240 years ago help us with questions about, say, the internet?
I’d say, ask an orthodox rabbi. E.g., a light switch is the modern equivalent of fire, so do not flip it on the Sabbath. 😉
We used the amendment process until 1971. Then Roe happened.
That rather elides the gutting of the 14th Amendment by the Supreme Court following the Slaughter-House Cases in 1873.
The constitution was written to accommodate slavery; the 14th was clearly intended to remedy that. The Supreme Court substituted its will for that of a supermajority of the country.
We used the amendment process until 1971. Then Roe happened.
That rather elides the gutting of the 14th Amendment by the Supreme Court following the Slaughter-House Cases in 1873.
The constitution was written to accommodate slavery; the 14th was clearly intended to remedy that. The Supreme Court substituted its will for that of a supermajority of the country.
I’m asking how a living constitutionalist knows that a ruling is incorrect
first, you appear to assume bad faith on the part of ‘living constitutionalists’ as a group. maybe put that assumption aside.
second, your displeasure with ‘living constitutionalists’ seems highly correlated with specific decisions you disagree with. some of which i also disagree with. it may be more useful to debate the decisions, rather than the virtue or lack of virtue of an entire approach to interpret a text.
third, i can’t speak for ‘living constitutionalists’. bc asked how folks who are ‘originalist detractors’ would interpret the text. i spoke up because i fall in that category, and my answer was that i interpret the text by trying to understand the underlying principle that it expresses. which seems, to me, a sensible approach to understanding any text that comes from a social or historical context other than one’s own. or even ones that do come from one’s own.
fourth, there probably is no correct answer to your question, because as far as i can tell there is no universally received definition for what a ‘living constitutionalist’ is, nor any standard or agreed-upon rule by which people who are labeled as such approach interpretation.
‘living constitutionalists’ seem to be whoever a self-described originalist says is a living constitutionalist.
so not only can’t i speak for them, they can’t speak for them. because there is no ‘them’.
i think most interpreters of the constitution would say a ruling is wrong if it violates the intent of the constitution. originalists, as far as i can tell, want to limit the meaning of ‘intent’ to be how that intent would be expressed in the late 18th C. other folks seek to understand what the underlying principle of the language is, and then apply that to their own place and time.
I’m asking how a living constitutionalist knows that a ruling is incorrect
first, you appear to assume bad faith on the part of ‘living constitutionalists’ as a group. maybe put that assumption aside.
second, your displeasure with ‘living constitutionalists’ seems highly correlated with specific decisions you disagree with. some of which i also disagree with. it may be more useful to debate the decisions, rather than the virtue or lack of virtue of an entire approach to interpret a text.
third, i can’t speak for ‘living constitutionalists’. bc asked how folks who are ‘originalist detractors’ would interpret the text. i spoke up because i fall in that category, and my answer was that i interpret the text by trying to understand the underlying principle that it expresses. which seems, to me, a sensible approach to understanding any text that comes from a social or historical context other than one’s own. or even ones that do come from one’s own.
fourth, there probably is no correct answer to your question, because as far as i can tell there is no universally received definition for what a ‘living constitutionalist’ is, nor any standard or agreed-upon rule by which people who are labeled as such approach interpretation.
‘living constitutionalists’ seem to be whoever a self-described originalist says is a living constitutionalist.
so not only can’t i speak for them, they can’t speak for them. because there is no ‘them’.
i think most interpreters of the constitution would say a ruling is wrong if it violates the intent of the constitution. originalists, as far as i can tell, want to limit the meaning of ‘intent’ to be how that intent would be expressed in the late 18th C. other folks seek to understand what the underlying principle of the language is, and then apply that to their own place and time.
I think I have recommended Lawrence Solan’s The Language of Judges, where he points out multiple cases where interpretation of linguistic facts is rarely an attempt to find something and more often a general attempt to ‘backfill’ legal decisions to give them an air of plausibility. The book is a bit old (1993) and this (open source!) recent paper by Solan
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3026373
discusses some things that weren’t possible in 1993, like the use of corpus analysis to justify decisions. More of his papers are here
https://works.bepress.com/lawrence_solan/
I think I have recommended Lawrence Solan’s The Language of Judges, where he points out multiple cases where interpretation of linguistic facts is rarely an attempt to find something and more often a general attempt to ‘backfill’ legal decisions to give them an air of plausibility. The book is a bit old (1993) and this (open source!) recent paper by Solan
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3026373
discusses some things that weren’t possible in 1993, like the use of corpus analysis to justify decisions. More of his papers are here
https://works.bepress.com/lawrence_solan/
originalists, as far as i can tell, want to limit the meaning of ‘intent’ to be how that intent would be expressed in the late 18th C.
modulated by the actual result they want to achieve, however.
that whole “well-regulated militia” thing, for example gets happily overlooked when the originalist™ wants to ensure every school shooter gets a Republican-brand gun.
originalists, as far as i can tell, want to limit the meaning of ‘intent’ to be how that intent would be expressed in the late 18th C.
modulated by the actual result they want to achieve, however.
that whole “well-regulated militia” thing, for example gets happily overlooked when the originalist™ wants to ensure every school shooter gets a Republican-brand gun.
Black and female sufferage, anal sex, and abortion were all things in 1789. All of them were natural law, in that they were real-life happening things and desired, albeit with contention, for ages.
Automatic and semiautomatic weaponry, let alone in the hands of underaged citizen schoolhouse shooters, were not. They didn’t exist except maybe in Ben Franklin’s dreamy imagination and even then someone would have told him to go fly a kite.
Only the latter, however, is truly intended and originalist according to nowadays shitheads.
Black and female sufferage, anal sex, and abortion were all things in 1789. All of them were natural law, in that they were real-life happening things and desired, albeit with contention, for ages.
Automatic and semiautomatic weaponry, let alone in the hands of underaged citizen schoolhouse shooters, were not. They didn’t exist except maybe in Ben Franklin’s dreamy imagination and even then someone would have told him to go fly a kite.
Only the latter, however, is truly intended and originalist according to nowadays shitheads.
Somehow I just assumed that it got established via an initiative, rather than by the legislature. Comes of being from California I suppose.
I had the same thought, being from Colorado. You get used to the idea that if the legislature ducks an issue, it’ll still get decided. Colorado’s legislature referred a redistricting commission for US House seats to the voters this year rather than face what might happen by initiative. There are rumors conservatives in Arizona were scared by the results of the most recent marijuana legalization initiative there so will legalize next session in order to maintain some control of the process.
Somehow I just assumed that it got established via an initiative, rather than by the legislature. Comes of being from California I suppose.
I had the same thought, being from Colorado. You get used to the idea that if the legislature ducks an issue, it’ll still get decided. Colorado’s legislature referred a redistricting commission for US House seats to the voters this year rather than face what might happen by initiative. There are rumors conservatives in Arizona were scared by the results of the most recent marijuana legalization initiative there so will legalize next session in order to maintain some control of the process.
I should think our “originalist” friends should go back and thoroughly review the politics surrounding Marbury v Madison and get back to us.
Now I could be as idiotic as many so-called conservatives and simply ask, “Where does it say ‘judicial review’ in the Constitution?” CHECKMATE LIBS! But I shall abjure that persuasive line of argument (/sarcasm).
Another interesting article on this topic may be read here.
I should think our “originalist” friends should go back and thoroughly review the politics surrounding Marbury v Madison and get back to us.
Now I could be as idiotic as many so-called conservatives and simply ask, “Where does it say ‘judicial review’ in the Constitution?” CHECKMATE LIBS! But I shall abjure that persuasive line of argument (/sarcasm).
Another interesting article on this topic may be read here.
Originalists and (textualists) engage in the conceit of making a big deal out of reading the words in the constitution and trying to understand them, as though the people who don’t bluster about doing so make wild guesses irrespective of the words, likely in a ways that conveniently align with their preferred results.
I’m going to start calling myself an “alternating-step walker” and will criticize the inefficient manner in which people who don’t call themselves that must walk. They must be doing something else, and it must not work very well. Otherwise, they’d be alternating-step walkers like I am.
The whole thing’s fncking silly.
Originalists and (textualists) engage in the conceit of making a big deal out of reading the words in the constitution and trying to understand them, as though the people who don’t bluster about doing so make wild guesses irrespective of the words, likely in a ways that conveniently align with their preferred results.
I’m going to start calling myself an “alternating-step walker” and will criticize the inefficient manner in which people who don’t call themselves that must walk. They must be doing something else, and it must not work very well. Otherwise, they’d be alternating-step walkers like I am.
The whole thing’s fncking silly.
The Nowadays Shitheads.
Not a terrible band name.
The Nowadays Shitheads.
Not a terrible band name.
What hsh said at 9:10.
What hsh said at 9:10.
I’m asking how a living constitutionalist knows that a ruling is incorrect
I wonder how Scalia knew that a ruling was incorrect. Sometimes (Roe) it was because it assumed a meaning not thought of by the framers. Sometimes (the dissent in Citizens United) it was because it failed to assume a meaning not thought of by the framers. And sometimes (the dissent in Heller) it was because it gave too much weight to the thinking of the framers and not enough to English legal commentaries from before US independence.
The truth is that the US Constitution is ambiguous, often deliberately so – it had to be agreed between people with different views. There is no single Originalist reading, as Scalia and Stevens demonstrated in Heller.
Why does it make sense to rely on some Original meaning anyway? The Constitution holds because the people choose not to amend it, but it’s their reading they rely on in making that choice, not something from the 18th century. If an amendment were passed replacing the entire constitution with the identical text, would that change its meaning? Or, more realistically, was most of the Bill of Rights incorporated into State constitutions by the Fourteenth Amendment according to its meaning in 1791 or 1868?
Since the contemporary understanding is the one which is accessible to us, it makes sense to interpret the Constitution that way. If Originalists don’t like that Constitution, it’s open to them, as Scalia suggests, to seek to amend it.
I’m asking how a living constitutionalist knows that a ruling is incorrect
I wonder how Scalia knew that a ruling was incorrect. Sometimes (Roe) it was because it assumed a meaning not thought of by the framers. Sometimes (the dissent in Citizens United) it was because it failed to assume a meaning not thought of by the framers. And sometimes (the dissent in Heller) it was because it gave too much weight to the thinking of the framers and not enough to English legal commentaries from before US independence.
The truth is that the US Constitution is ambiguous, often deliberately so – it had to be agreed between people with different views. There is no single Originalist reading, as Scalia and Stevens demonstrated in Heller.
Why does it make sense to rely on some Original meaning anyway? The Constitution holds because the people choose not to amend it, but it’s their reading they rely on in making that choice, not something from the 18th century. If an amendment were passed replacing the entire constitution with the identical text, would that change its meaning? Or, more realistically, was most of the Bill of Rights incorporated into State constitutions by the Fourteenth Amendment according to its meaning in 1791 or 1868?
Since the contemporary understanding is the one which is accessible to us, it makes sense to interpret the Constitution that way. If Originalists don’t like that Constitution, it’s open to them, as Scalia suggests, to seek to amend it.
It’s “living constitutionalists” vs. “DEAD constitutionalists”.
The constitution keeps moaning about “I’m not dead, I don’t want to go in the cart”, but the Trump/GOP is winding up for a blow to the head that will settle the issue.
Followed by Trump’s coronation as “Donald I, Emperor of America”. And the ethnic cleansing.
It’s “living constitutionalists” vs. “DEAD constitutionalists”.
The constitution keeps moaning about “I’m not dead, I don’t want to go in the cart”, but the Trump/GOP is winding up for a blow to the head that will settle the issue.
Followed by Trump’s coronation as “Donald I, Emperor of America”. And the ethnic cleansing.
Um, am I too tired to interpret sentences correctly, or is that a typo? Or are you from one of those tribes that doesn’t count beyond three?
Yes a typo, or more accurately, my memory failed. It’s 4, no?
Um, am I too tired to interpret sentences correctly, or is that a typo? Or are you from one of those tribes that doesn’t count beyond three?
Yes a typo, or more accurately, my memory failed. It’s 4, no?
If originalists put their money where their mouths are, they’d be recusing themselves from rulings regularly for their inability to discern with sufficient confidence what was in the minds of the framers. Instead, they pretend they can do what they say they’re doing.
If originalists put their money where their mouths are, they’d be recusing themselves from rulings regularly for their inability to discern with sufficient confidence what was in the minds of the framers. Instead, they pretend they can do what they say they’re doing.
It’s 4, no?
O’Connor, RBG, Sotomayor, and Kagan.
But I googled to make sure. 😉
It’s 4, no?
O’Connor, RBG, Sotomayor, and Kagan.
But I googled to make sure. 😉
And found this portrait, which I had never seen. Quite interesting.
And found this portrait, which I had never seen. Quite interesting.
But I googled to make sure. 😉
Me too!
But I googled to make sure. 😉
Me too!
Under originalist jurisprudence, can women be barred from voting, assuming for this purpose that the 19th Amendment was never enacted?
Under originalist jurisprudence, can women be barred from voting, assuming for this purpose that the 19th Amendment was never enacted?
Maybe the Count and Kavanaugh can hang out and talk baseball.
https://www.yahoo.com/sports/supreme-court-nominee-brett-kavanaugh-incurred-credit-card-debt-buying-baseball-tickets-per-report-232222756.html
Maybe the Count and Kavanaugh can hang out and talk baseball.
https://www.yahoo.com/sports/supreme-court-nominee-brett-kavanaugh-incurred-credit-card-debt-buying-baseball-tickets-per-report-232222756.html
Sebastian: Given a fairly evenly divided polity split, wouldn’t it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?
me: So in some alternative history where the Civil War didn’t happen, equal rights for African-Americans should have waited until a large majority was in favor?
Still waiting.
Sebastian: Given a fairly evenly divided polity split, wouldn’t it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?
me: So in some alternative history where the Civil War didn’t happen, equal rights for African-Americans should have waited until a large majority was in favor?
Still waiting.
I’m still trying to get past “empowering lots of hacks.”
I’m still trying to get past “empowering lots of hacks.”
Yeah…I think I’ve been avoiding trying to figure out who that’s supposed to mean. Hacks like RBG? Souter? Or hacks like the people who bring the cases? I don’t think I really want to know, because what’s the point once the argument gets to that level.
Yeah…I think I’ve been avoiding trying to figure out who that’s supposed to mean. Hacks like RBG? Souter? Or hacks like the people who bring the cases? I don’t think I really want to know, because what’s the point once the argument gets to that level.
Abolish the Senate……………….
Abolish the Senate……………….
Also, long ago I read Liberty and Sexuality, by David Garrow. Long, fascinating book about the work that was done to legalize birth control in this country. Two things struck me:
1. Activists over time went back and forth between the legislatures and the courts. Roadblock in one direction, try another. Etc.
2. The story covered 70 or 80 years of work on birth control before Eisenstadt v Baird, and then Roe followed like a domino. But the ground had been being prepared for a very long time.
And again for Sebastian: In some alternative history where the Civil War didn’t happen, should equal rights for African-Americans have waited until a large majority was in favor? What about gay rights? Worth accepting only when our fellow citizens vote in favor of admitting that it’s our world too…?
Also, long ago I read Liberty and Sexuality, by David Garrow. Long, fascinating book about the work that was done to legalize birth control in this country. Two things struck me:
1. Activists over time went back and forth between the legislatures and the courts. Roadblock in one direction, try another. Etc.
2. The story covered 70 or 80 years of work on birth control before Eisenstadt v Baird, and then Roe followed like a domino. But the ground had been being prepared for a very long time.
And again for Sebastian: In some alternative history where the Civil War didn’t happen, should equal rights for African-Americans have waited until a large majority was in favor? What about gay rights? Worth accepting only when our fellow citizens vote in favor of admitting that it’s our world too…?
Yikes I meant ‘hacks’ like hacking the system by trying to get things that need amendments through without amending the Constitution. Not at all like “this person is a dishonest hack”. Hacking in the sense I meant was the semi laudable let’s get things done by going around the system kind of hack. Like Uber gets around taxi laws because the taxi medallion system is so awful but we probably shouldn’t run the world that way kind of hack…
Yikes I meant ‘hacks’ like hacking the system by trying to get things that need amendments through without amending the Constitution. Not at all like “this person is a dishonest hack”. Hacking in the sense I meant was the semi laudable let’s get things done by going around the system kind of hack. Like Uber gets around taxi laws because the taxi medallion system is so awful but we probably shouldn’t run the world that way kind of hack…
Abolish the Senate……………….
seconded.
Abolish the Senate……………….
seconded.
JanieM I’m not sure what you’re saying. Are you positing a world where there is no 13th through 15th amendments? Isn’t it better that those are there rather than just some 5 judges saying something similar, waiting for one judge to retire and be replaced to start up a whole new crisis about it every 7 years or so?
JanieM I’m not sure what you’re saying. Are you positing a world where there is no 13th through 15th amendments? Isn’t it better that those are there rather than just some 5 judges saying something similar, waiting for one judge to retire and be replaced to start up a whole new crisis about it every 7 years or so?
I’m still trying to get past “empowering lots of hacks.”
Nothing in the Constitution explicitly bars the president appointing and the Senate approving “hacks” to the Supreme Court. How this slipped past our Wise Founders is simply beyond me.
I’m still trying to get past “empowering lots of hacks.”
Nothing in the Constitution explicitly bars the president appointing and the Senate approving “hacks” to the Supreme Court. How this slipped past our Wise Founders is simply beyond me.
JanieM and Ugh: good questions all….
JanieM and Ugh: good questions all….
Just goes to show one should refresh before commenting!
Just goes to show one should refresh before commenting!
JanieM I’m not sure what you’re saying. Are you positing a world where there is no 13th through 15th amendments?
More or less, yes, since we had to have a Civil War before they were passed.
Isn’t it better that those are there rather than just some 5 judges saying something similar…
Once again, Roe was 7 judges. So what does 5 judges have to do with it?
JanieM I’m not sure what you’re saying. Are you positing a world where there is no 13th through 15th amendments?
More or less, yes, since we had to have a Civil War before they were passed.
Isn’t it better that those are there rather than just some 5 judges saying something similar…
Once again, Roe was 7 judges. So what does 5 judges have to do with it?
P.S. thanks for the explanation about “hacks.”
P.S. thanks for the explanation about “hacks.”
Isn’t it better that those are there rather than just some 5 judges saying something similar(?)
I can’t speak for JanieM, but if given a choice between 5 hacks and that bloody (something, something) preceding their passage, I would quite reasonably be inclined to say, “No”.
Isn’t it better that those are there rather than just some 5 judges saying something similar(?)
I can’t speak for JanieM, but if given a choice between 5 hacks and that bloody (something, something) preceding their passage, I would quite reasonably be inclined to say, “No”.
Side comment from googling dates about birth control: For my first two years of college I lived in McCormick Hall, named for, and financed by, Katharine Dexter McCormick. She died the year before I got there, so I never met her. But her life was compounded of tragedy and accomplishment, including a degree from MIT in 1904, at a time when you could count the female students on the fingers of one hand, and a great deal of work (and $) on behalf of women’s rights and birth control.
Side comment from googling dates about birth control: For my first two years of college I lived in McCormick Hall, named for, and financed by, Katharine Dexter McCormick. She died the year before I got there, so I never met her. But her life was compounded of tragedy and accomplishment, including a degree from MIT in 1904, at a time when you could count the female students on the fingers of one hand, and a great deal of work (and $) on behalf of women’s rights and birth control.
You can speak for me on this one, bobbyp. 😉
You can speak for me on this one, bobbyp. 😉
Yikes I meant ‘hacks’ like hacking the system by trying to get things that need amendments through without amending the Constitution.
There is nothing in the Constitution that bars this. True story.
Yikes I meant ‘hacks’ like hacking the system by trying to get things that need amendments through without amending the Constitution.
There is nothing in the Constitution that bars this. True story.
I mean, this 5 judges thing is just silly. Should there be a rule (amendment?) that says that Supreme Court decisions have to have a supermajority on the court?
There is no perfect system. Humans are going to figure out a way to hack any system humans can invent. What do you think Eisenhower would have said about Mitch McConnell’s antics with Garland? (Although “antics” is far to value-free a word.)
We (most generically) have a system (ditto). It works okay for a while, then someone starts undermining it (gerrymandering, refusal to consider a president’s SC nomination, changes in the Senate rules….).
Eventually the hacking gets to an intolerable level and…something happens. We’ll see, I guess. As russell says, good luck to all.
I mean, this 5 judges thing is just silly. Should there be a rule (amendment?) that says that Supreme Court decisions have to have a supermajority on the court?
There is no perfect system. Humans are going to figure out a way to hack any system humans can invent. What do you think Eisenhower would have said about Mitch McConnell’s antics with Garland? (Although “antics” is far to value-free a word.)
We (most generically) have a system (ditto). It works okay for a while, then someone starts undermining it (gerrymandering, refusal to consider a president’s SC nomination, changes in the Senate rules….).
Eventually the hacking gets to an intolerable level and…something happens. We’ll see, I guess. As russell says, good luck to all.
trying to get things that need amendments through without amending the Constitution
Who gets to say what “needs” an amendment?
trying to get things that need amendments through without amending the Constitution
Who gets to say what “needs” an amendment?
russell (10:36 PM): live by the letter, or live by the spirit.
There are, I have discovered, people who are just enormously uncomfortable with grey. They want, they need, to have the rules all spelled out in detail, with every possible contingency covered. Anything involving human judgement just doesn’t work for them.
That’s where the “textualists” are coming from. If something isn’t explicitly spelled out in the text, they just can’t accept that it might be an entirely reasonable interpretation of the spirit of the law.
Other people, those who don’t need that totally explicit detail, can have a lot of trouble understanding what those guys problem is. It isn’t really a desire to be obnoxious — however easy it is to view it that way. It’s just that the way they are wired.
russell (10:36 PM): live by the letter, or live by the spirit.
There are, I have discovered, people who are just enormously uncomfortable with grey. They want, they need, to have the rules all spelled out in detail, with every possible contingency covered. Anything involving human judgement just doesn’t work for them.
That’s where the “textualists” are coming from. If something isn’t explicitly spelled out in the text, they just can’t accept that it might be an entirely reasonable interpretation of the spirit of the law.
Other people, those who don’t need that totally explicit detail, can have a lot of trouble understanding what those guys problem is. It isn’t really a desire to be obnoxious — however easy it is to view it that way. It’s just that the way they are wired.
But wj, you neglect the fact that some people are just more comfortable with 18th century values and attitudes than other people….
But wj, you neglect the fact that some people are just more comfortable with 18th century values and attitudes than other people….
Sebastion (12:01): don’t think your reading really gets it (certainly not in the spirit of reading that russell is talking about). You can take property FOR PUBLIC USE if you pay for it. Making a park is public use. Making a freeway is public use. There are a very large number of public uses. But not everything is a public use. Giving it to some other private owner is almost the definition of “not public use”.
You’re right, I missed the “public use” point. Sorry.
But I think that “public use” could, in some circumstances, involve selling (not giving) something to a private owner. For example, your town needs more apartments built. Somebody owns land that could be used for that; someone else would like to buy it and build the needed apartments. Unfortunately, the current owner has a problem with the would-be builder as a person. Nothing to do with the proposed use, he just down’t like the guy and refuses to deal with him.
Or, for another example, the current owner just doesn’t like the idea of apartments in the town because he loves the place as all single family houses.
I would say either of those would be a reasonable case when “public use” could include the government as intermediary. And I think it is superior to writing a law which would try to require an owner to build apartments on his property, when he says he would rather continue to leave it as vacant warehouses.
Sebastion (12:01): don’t think your reading really gets it (certainly not in the spirit of reading that russell is talking about). You can take property FOR PUBLIC USE if you pay for it. Making a park is public use. Making a freeway is public use. There are a very large number of public uses. But not everything is a public use. Giving it to some other private owner is almost the definition of “not public use”.
You’re right, I missed the “public use” point. Sorry.
But I think that “public use” could, in some circumstances, involve selling (not giving) something to a private owner. For example, your town needs more apartments built. Somebody owns land that could be used for that; someone else would like to buy it and build the needed apartments. Unfortunately, the current owner has a problem with the would-be builder as a person. Nothing to do with the proposed use, he just down’t like the guy and refuses to deal with him.
Or, for another example, the current owner just doesn’t like the idea of apartments in the town because he loves the place as all single family houses.
I would say either of those would be a reasonable case when “public use” could include the government as intermediary. And I think it is superior to writing a law which would try to require an owner to build apartments on his property, when he says he would rather continue to leave it as vacant warehouses.
Hartmut: I’d say, ask an orthodox rabbi. E.g., a light switch is the modern equivalent of fire, so do not flip it on the Sabbath.
And yet (at least among the very Orthodox Jews that I know personally) it is OK to set a timer which will automatically start the coffee maker Saturday morning. If turning it on manually would be wrong, how is turning it on automatically somehow OK? The answer appears, from the outside, to depend on how addicted the rabbi is to his morning coffee. Which is pretty much what is being said of “originalists”.
Hartmut: I’d say, ask an orthodox rabbi. E.g., a light switch is the modern equivalent of fire, so do not flip it on the Sabbath.
And yet (at least among the very Orthodox Jews that I know personally) it is OK to set a timer which will automatically start the coffee maker Saturday morning. If turning it on manually would be wrong, how is turning it on automatically somehow OK? The answer appears, from the outside, to depend on how addicted the rabbi is to his morning coffee. Which is pretty much what is being said of “originalists”.
You can just as easily evade the intent of the law by being hyper-textual as you can beat people over the head with it by being hyper-textual. Like most things, it’s a double-edged sword.
You can just as easily evade the intent of the law by being hyper-textual as you can beat people over the head with it by being hyper-textual. Like most things, it’s a double-edged sword.
But wj, you neglect the fact that some people are just more comfortable with 18th century values and attitudes than other people….
Quite true. 18th century values and attitudes having the enormous benefit of having nobody from that era around to dispute their claims of what those really were. Or, worse, show that there weren’t a single, universal, set of said values and attitudes. Much more convenient when you want to claim that your views are their views.
But wj, you neglect the fact that some people are just more comfortable with 18th century values and attitudes than other people….
Quite true. 18th century values and attitudes having the enormous benefit of having nobody from that era around to dispute their claims of what those really were. Or, worse, show that there weren’t a single, universal, set of said values and attitudes. Much more convenient when you want to claim that your views are their views.
So what are you trying to say here….that women’s and gay rights should have waited for an Amendment?
No, and Orrin Hatch and Teddy Kennedy didn’t wait for it. Nor did Bobby Kennedy. Nor did Abraham Lincoln. Nor did George HW Bush and Tom Harkin. The problem with using SCOTUS on issues is that it ends debate. Acting legislatively or with the amendment process continues debate.
And if two of the branches disagree about what the last word should be, then what? A shooting war?
I don’t see how it can work without some entity having the last word. Speaking as a gay person, I would prefer it not be the majority of the electorate.
Two branches disagree all the time and we normally get around the disagreement because the Constitution provides for the disagreement with the balance of power. Presidents veto, issue executive orders that are or at least arguably are unconstitutional, SCOTUS overturns, Congress passes unconstitutional laws, which then get vetoed or overturned. Presidents get impeached. The real question as I see it is what do we do when SCOTUS gets it wrong? Jefferson thought the states could just not enforce it. I’m more Hamiltonian. I think we follow SCOTUS the vast majority of the time. If something of sufficient import arises, the President refuses to enforce and faces veto or Congress legislates around the issue or we amend.
The problem with “the last word” as an absolute absolute is it does away with the balance of power that was so carefully crafted into the Constitution. As a default, I agree with judicial review. As a pure absolute, I like the balance of power.
Take frex the Dred Scott decision. That was overturned by the Civil Rights Act of 1866 and the 14th Amendment. Oh, and a civil war. I see your point.
But do you see mine? Debate tends to stop when SCOTUS rules. So we now go to SCOTUS for what should be active political questions to “amend” the Constitution. And I don’t think that is healthy.
So what are you trying to say here….that women’s and gay rights should have waited for an Amendment?
No, and Orrin Hatch and Teddy Kennedy didn’t wait for it. Nor did Bobby Kennedy. Nor did Abraham Lincoln. Nor did George HW Bush and Tom Harkin. The problem with using SCOTUS on issues is that it ends debate. Acting legislatively or with the amendment process continues debate.
And if two of the branches disagree about what the last word should be, then what? A shooting war?
I don’t see how it can work without some entity having the last word. Speaking as a gay person, I would prefer it not be the majority of the electorate.
Two branches disagree all the time and we normally get around the disagreement because the Constitution provides for the disagreement with the balance of power. Presidents veto, issue executive orders that are or at least arguably are unconstitutional, SCOTUS overturns, Congress passes unconstitutional laws, which then get vetoed or overturned. Presidents get impeached. The real question as I see it is what do we do when SCOTUS gets it wrong? Jefferson thought the states could just not enforce it. I’m more Hamiltonian. I think we follow SCOTUS the vast majority of the time. If something of sufficient import arises, the President refuses to enforce and faces veto or Congress legislates around the issue or we amend.
The problem with “the last word” as an absolute absolute is it does away with the balance of power that was so carefully crafted into the Constitution. As a default, I agree with judicial review. As a pure absolute, I like the balance of power.
Take frex the Dred Scott decision. That was overturned by the Civil Rights Act of 1866 and the 14th Amendment. Oh, and a civil war. I see your point.
But do you see mine? Debate tends to stop when SCOTUS rules. So we now go to SCOTUS for what should be active political questions to “amend” the Constitution. And I don’t think that is healthy.
I have missed your particular brand of wrongness 🙂
And back at you, TP, lol.
I have missed your particular brand of wrongness 🙂
And back at you, TP, lol.
If something of sufficient import arises, the President refuses to enforce and faces veto
You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce. At that point, why bother with all the overhead of the other two branches? Just make it a dictatorship and have done.
And what veto are you talking about that could hit a President who refuses to enforce a law? Have I missed something in the Constitution?
If something of sufficient import arises, the President refuses to enforce and faces veto
You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce. At that point, why bother with all the overhead of the other two branches? Just make it a dictatorship and have done.
And what veto are you talking about that could hit a President who refuses to enforce a law? Have I missed something in the Constitution?
Debate tends to stop when SCOTUS rules.
Yeah. I’m sure we have all noticed how debate over abortion just stopped after Roe
/sarcasm
Debate tends to stop when SCOTUS rules.
Yeah. I’m sure we have all noticed how debate over abortion just stopped after Roe
/sarcasm
Debate tends to stop when SCOTUS rules.
Roe certainly didn’t end any debate about abortion.
Debate tends to stop when SCOTUS rules.
Roe certainly didn’t end any debate about abortion.
For example, your town needs more apartments built.
The “Chevron deference” seems to be loosing some ground in the Supreme and lower courts.
Neil Gorsuch opposes the Kelo decision – a terrible Supreme Court property rights ruling that Donald Trump loves
For example, your town needs more apartments built.
The “Chevron deference” seems to be loosing some ground in the Supreme and lower courts.
Neil Gorsuch opposes the Kelo decision – a terrible Supreme Court property rights ruling that Donald Trump loves
Chevron deference makes the world go ’round.
Chevron deference makes the world go ’round.
Re cleek at 12:25:
Two great minds with but a single thought…. 😉
Re cleek at 12:25:
Two great minds with but a single thought…. 😉
Is it consistent with the principle that is expressed in the text, or not.
Ask me 100 more times, and that will be my answer.
This is close to an originalist position, but not quite (and it depends on the flavor of originalist). Unlike the Old Testament, the Constitution wasn’t written with any allegory or metaphors in it. I’m with Scalia. You don’t get beyond unless the text is unclear or ambiguous on the issue you are addressing. Then you could expand the question to how the provision was understood at the time of passing, which IMHO could include “principle” of the thing. Some originalists go straight to intent but Scalia goes pure text first. Because while words can be ambiguous and the meaning of certain words can change over time, sometimes it’s dang plain and right there in front of your face.
What Seb said at 11:29. Kelo is a good example.
“For public use.” Not “for the general public economic benefit.” Not “for the benefit of the Pfizer Corporation.” Just start with the dang text. If you were to go to “principle” first you might very well end up where the majority ended up on that issue. Or you might not, I guess, if you find that the principle is “public use” not “public benefit.” But why go to principle when the text is clear? If there is any question of what “use” meant, I’d look at what the situation was on the ground at the time. That did not include taking private property and giving it to developers.
I think it is ironic that the textualists/originalists there by simply following the Constitution’s text stood up, IMHO, against corporate interests and in favor of the poor. Shoot, civil libertarians and the NAACP were in agreement on this one. And the resulting “development” was, shall we say, the height of irony.
Is it consistent with the principle that is expressed in the text, or not.
Ask me 100 more times, and that will be my answer.
This is close to an originalist position, but not quite (and it depends on the flavor of originalist). Unlike the Old Testament, the Constitution wasn’t written with any allegory or metaphors in it. I’m with Scalia. You don’t get beyond unless the text is unclear or ambiguous on the issue you are addressing. Then you could expand the question to how the provision was understood at the time of passing, which IMHO could include “principle” of the thing. Some originalists go straight to intent but Scalia goes pure text first. Because while words can be ambiguous and the meaning of certain words can change over time, sometimes it’s dang plain and right there in front of your face.
What Seb said at 11:29. Kelo is a good example.
“For public use.” Not “for the general public economic benefit.” Not “for the benefit of the Pfizer Corporation.” Just start with the dang text. If you were to go to “principle” first you might very well end up where the majority ended up on that issue. Or you might not, I guess, if you find that the principle is “public use” not “public benefit.” But why go to principle when the text is clear? If there is any question of what “use” meant, I’d look at what the situation was on the ground at the time. That did not include taking private property and giving it to developers.
I think it is ironic that the textualists/originalists there by simply following the Constitution’s text stood up, IMHO, against corporate interests and in favor of the poor. Shoot, civil libertarians and the NAACP were in agreement on this one. And the resulting “development” was, shall we say, the height of irony.
You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce.
I think bc may have meant impeachment rather than veto, since veto is something the president does rather than something the president faces. If I’m right, then, no, the president doesn’t unilaterally get to decide everything like a dictator, since congress can remove the president from office.
You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce.
I think bc may have meant impeachment rather than veto, since veto is something the president does rather than something the president faces. If I’m right, then, no, the president doesn’t unilaterally get to decide everything like a dictator, since congress can remove the president from office.
FWIW, I’m no lawyer and can’t claim to be fully versed on all the details of Kelo, but from what I do know about it, I would put myself on the side of the minority in the decision.
(I lived in New London for about 7 months. Does that give me any special insight? ;^))
FWIW, I’m no lawyer and can’t claim to be fully versed on all the details of Kelo, but from what I do know about it, I would put myself on the side of the minority in the decision.
(I lived in New London for about 7 months. Does that give me any special insight? ;^))
hsh, it did occur to me that he might mean impeachment. But . . . “Just start with the dang text.” 😉
hsh, it did occur to me that he might mean impeachment. But . . . “Just start with the dang text.” 😉
Sorry for the serial comments, but I just want to add that I (and probably others not enamored with originalism) am not saying there is never a clear reading of the constitution. Sometimes there is, and often there isn’t.
Sorry for the serial comments, but I just want to add that I (and probably others not enamored with originalism) am not saying there is never a clear reading of the constitution. Sometimes there is, and often there isn’t.
While we’re talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment, why wouldn’t it equally be a person for other purposes. Specifically, why couldn’t it insist on registering to vote?
Picture the fun! Corporations (human beings, too, I suppose) creating multiple subsidiaries, each separately incorporated. Which then register and vote. Why bother with bribing members of the legislature via campaign donations, when you can just point out that your corporation’s multiple votes will swing the election all by themselves?
While we’re talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment, why wouldn’t it equally be a person for other purposes. Specifically, why couldn’t it insist on registering to vote?
Picture the fun! Corporations (human beings, too, I suppose) creating multiple subsidiaries, each separately incorporated. Which then register and vote. Why bother with bribing members of the legislature via campaign donations, when you can just point out that your corporation’s multiple votes will swing the election all by themselves?
The real question as I see it is what do we do when SCOTUS gets it wrong?
and who is to have the final say that they ‘got it wrong’?
The real question as I see it is what do we do when SCOTUS gets it wrong?
and who is to have the final say that they ‘got it wrong’?
You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce.
Writ of Mandamus, followed by Contempt, but perhaps an actual lawyer could weigh in on the issue.
You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce.
Writ of Mandamus, followed by Contempt, but perhaps an actual lawyer could weigh in on the issue.
and who is to have the final say that they ‘got it wrong’?
Over time society does. The Court tends to be a trend follower. Sometimes a bit ahead, sometimes behind.
and who is to have the final say that they ‘got it wrong’?
Over time society does. The Court tends to be a trend follower. Sometimes a bit ahead, sometimes behind.
Contrary to what Sebastian was telling us upthread…
https://www.politico.com/story/2018/07/12/roe-v-wade-gallup-poll-714978
Will the Court follow that trend ?
Theory is all very well until it meets reality.
Contrary to what Sebastian was telling us upthread…
https://www.politico.com/story/2018/07/12/roe-v-wade-gallup-poll-714978
Will the Court follow that trend ?
Theory is all very well until it meets reality.
While we’re talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment,
corporations aren’t even mentioned in the Constitution. and corporate personhood was created in the 1880s. it’s not even close to being an ‘original’ thing.
While we’re talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment,
corporations aren’t even mentioned in the Constitution. and corporate personhood was created in the 1880s. it’s not even close to being an ‘original’ thing.
it’s not even close to being an ‘original’ thing.
I know. But it was “originalists” who wrote Citizens United. Not “living Constitution” believers. Just sayin’
it’s not even close to being an ‘original’ thing.
I know. But it was “originalists” who wrote Citizens United. Not “living Constitution” believers. Just sayin’
Keep in mind that the Citizens United decision also applied to labor unions.
Keep in mind that the Citizens United decision also applied to labor unions.
“Freedom of the press”
“The right to keep and bear arms”
“Cruel and unusual punishments”
Printed matter only, or do pixels count?
Some arms, any and all arms?
Both cruel and unusual, or either?
I’m sure Scalia knew the “right” answers to these questions. And the Federalist Society is no doubt sure that a lickspittle like Kavanaugh does too. Merrick Garland doesn’t, of course.
–TP
“Freedom of the press”
“The right to keep and bear arms”
“Cruel and unusual punishments”
Printed matter only, or do pixels count?
Some arms, any and all arms?
Both cruel and unusual, or either?
I’m sure Scalia knew the “right” answers to these questions. And the Federalist Society is no doubt sure that a lickspittle like Kavanaugh does too. Merrick Garland doesn’t, of course.
–TP
There are, I have discovered, people who … want … to have the rules all spelled out in detail
That’s me (I’ve elided the bits I think don’t apply). I think if you have a rulebook, it should say what the rules are. I think it’s really bad that McConnell and Trump have in effect the power to change the Constitution. So there should be clearer rules, and less room for judicial interpretation of them.
Scalia goes pure text first
If he did, I’d have some respect for his approach. But Citizens United.
However, I see no good reason to go with a guess of what the text meant in the 18th century. Unless of course you approve of the social outlook of a group of racists (many of the slaveowners) and sexists.
There are, I have discovered, people who … want … to have the rules all spelled out in detail
That’s me (I’ve elided the bits I think don’t apply). I think if you have a rulebook, it should say what the rules are. I think it’s really bad that McConnell and Trump have in effect the power to change the Constitution. So there should be clearer rules, and less room for judicial interpretation of them.
Scalia goes pure text first
If he did, I’d have some respect for his approach. But Citizens United.
However, I see no good reason to go with a guess of what the text meant in the 18th century. Unless of course you approve of the social outlook of a group of racists (many of the slaveowners) and sexists.
So there should be clearer rules, and less room for judicial interpretation of them.
Accepting, for the sake of discussion only, that there should be, that isn’t the Constitution that we have. And there doesn’t appear to be any realistic prospect of a flood of amendments which would be required to produce such a document. So how do we deal with the reality before us?
So there should be clearer rules, and less room for judicial interpretation of them.
Accepting, for the sake of discussion only, that there should be, that isn’t the Constitution that we have. And there doesn’t appear to be any realistic prospect of a flood of amendments which would be required to produce such a document. So how do we deal with the reality before us?
Tony P, I assumed (on the basis of absolutely no research or reading) that Scalia’s reasoning on the question of “cruel and unusual punishment” was that when used to extract information, torture was not exactly “punishment” because at the stage it was being used it was being used as an inducement, not as a punishment for crime or wrongdoing. As you might expect, I regarded this with contempt. Are you telling me he objected on the basis it had to be cruel AND unusual?
Tony P, I assumed (on the basis of absolutely no research or reading) that Scalia’s reasoning on the question of “cruel and unusual punishment” was that when used to extract information, torture was not exactly “punishment” because at the stage it was being used it was being used as an inducement, not as a punishment for crime or wrongdoing. As you might expect, I regarded this with contempt. Are you telling me he objected on the basis it had to be cruel AND unusual?
Nigel, that isn’t contrary to what I said up thread at all. In fact I’ve repeatedly linked to the primary document (the actual Gallup poll) referred to in the link you provide. Here it is again (note that they have updated with 2018 poll results cited in the link you cite) Gallup Poll Primary Document
*Exactly as I said above and in the last thread*, but now for the 2018 numbers, 60% of people think abortion should be generally legal in the first trimester (down 1% from last poll), 65% think it should be generally ILLEGAL in the second trimester (up 1% from the last poll) and 81% think it should be generally illegal in the third trimester (up 1% from the last poll). Roe definitely doesn’t allow abortion to be generally illegal in the second trimester, so a much more natural interpretation would be that people think of a general question like “do you support Roe” as supporting the first trimester right they approve of, and not the second trimester where they strongly disapprove of it.
Which is exactly what I said.
Nigel, that isn’t contrary to what I said up thread at all. In fact I’ve repeatedly linked to the primary document (the actual Gallup poll) referred to in the link you provide. Here it is again (note that they have updated with 2018 poll results cited in the link you cite) Gallup Poll Primary Document
*Exactly as I said above and in the last thread*, but now for the 2018 numbers, 60% of people think abortion should be generally legal in the first trimester (down 1% from last poll), 65% think it should be generally ILLEGAL in the second trimester (up 1% from the last poll) and 81% think it should be generally illegal in the third trimester (up 1% from the last poll). Roe definitely doesn’t allow abortion to be generally illegal in the second trimester, so a much more natural interpretation would be that people think of a general question like “do you support Roe” as supporting the first trimester right they approve of, and not the second trimester where they strongly disapprove of it.
Which is exactly what I said.
“While we’re talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment, why wouldn’t it equally be a person for other purposes. Specifically, why couldn’t it insist on registering to vote? ”
You’re misinterpreting shorthand discussion for doctrine. The doctrine is that for most individual rights that could be exercised by forming a group and pooling resources we don’t take away those rights just because they pooled resources (in an association, corporation, union, newspaper company, etc.). So for analytical purposes, in those case, it makes just as much sense to treat an association asserting those pooled rights as it does for an individual in a similar position. That is what is meant by the shorthand “corporate personhood”. This may break down on the extreme edges, but it is pretty good shorthand.
It doesn’t really make sense to talk about voting rights in that understanding, because voters can’t pool rights (voter contracts are unenforceable and you can’t see how they voted anyway because of voter privacy laws).
“While we’re talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment, why wouldn’t it equally be a person for other purposes. Specifically, why couldn’t it insist on registering to vote? ”
You’re misinterpreting shorthand discussion for doctrine. The doctrine is that for most individual rights that could be exercised by forming a group and pooling resources we don’t take away those rights just because they pooled resources (in an association, corporation, union, newspaper company, etc.). So for analytical purposes, in those case, it makes just as much sense to treat an association asserting those pooled rights as it does for an individual in a similar position. That is what is meant by the shorthand “corporate personhood”. This may break down on the extreme edges, but it is pretty good shorthand.
It doesn’t really make sense to talk about voting rights in that understanding, because voters can’t pool rights (voter contracts are unenforceable and you can’t see how they voted anyway because of voter privacy laws).
So for analytical purposes, in those case, it makes just as much sense to treat an association asserting those pooled rights as it does for an individual in a similar position.
And in much the same way, “corporate person-hood” doesn’t make sense for uniquely individual things, like religion. Unfortunately the drafters of the RFRA weren’t as careful as they should have been in this respect.
It also bears noting that there are different types of corporate forms. There is the one everyone thinks of where you buy a share of a corporation, get to vote at the meeting of the Board of Directors (for common stock, at least), and are entitled to dividends pari passu with other shareholders of the same class. You can hold your stock, voting, and dividend rights in perpetuity for the share purchase price on the day you bought it.
But there are also other corporations, particularly not-for-profits such as the one I work for, where to participate in corporate governance (via voting for the Board) you have to pay a fee every year. Similarly to obtain the benefits of membership in the organization.
This is a crucial distinction between, say, Microsoft and Union Local #275. It makes much more sense to allow Union Local, organized as a not-for-profit corporation operated for the benefit of its members requiring an annual membership fee, to have 1st Amendment rights and participate in politics than it does Microsoft.
Sadly, this distinction has been lost, ISTM.
So for analytical purposes, in those case, it makes just as much sense to treat an association asserting those pooled rights as it does for an individual in a similar position.
And in much the same way, “corporate person-hood” doesn’t make sense for uniquely individual things, like religion. Unfortunately the drafters of the RFRA weren’t as careful as they should have been in this respect.
It also bears noting that there are different types of corporate forms. There is the one everyone thinks of where you buy a share of a corporation, get to vote at the meeting of the Board of Directors (for common stock, at least), and are entitled to dividends pari passu with other shareholders of the same class. You can hold your stock, voting, and dividend rights in perpetuity for the share purchase price on the day you bought it.
But there are also other corporations, particularly not-for-profits such as the one I work for, where to participate in corporate governance (via voting for the Board) you have to pay a fee every year. Similarly to obtain the benefits of membership in the organization.
This is a crucial distinction between, say, Microsoft and Union Local #275. It makes much more sense to allow Union Local, organized as a not-for-profit corporation operated for the benefit of its members requiring an annual membership fee, to have 1st Amendment rights and participate in politics than it does Microsoft.
Sadly, this distinction has been lost, ISTM.
…65% think it should be generally ILLEGAL in the second trimester
…and not the second trimester where they strongly disapprove of it.
Emphasis mine, on the adverbs.
…65% think it should be generally ILLEGAL in the second trimester
…and not the second trimester where they strongly disapprove of it.
Emphasis mine, on the adverbs.
Over time society does. The Court tends to be a trend follower. Sometimes a bit ahead, sometimes behind.
Just like the Congress! Funny how that works.
Over time society does. The Court tends to be a trend follower. Sometimes a bit ahead, sometimes behind.
Just like the Congress! Funny how that works.
bc,
I’m with Scalia. You don’t get beyond unless the text is unclear or ambiguous on the issue you are addressing…
This is incomplete. To be fair, impartial, and in alignment with the actually observed historical record of this interpretive approach, you would need this following clarification:
….or if it does not support your ideological predispositions to begin with.
See Bush v. Gore.
There is also the issue of the ‘ladder of abstraction’ raised by Scott Lemieux in the link I cited above, and which none of the defenders here of so-called originalism have bothered to address.
bc,
I’m with Scalia. You don’t get beyond unless the text is unclear or ambiguous on the issue you are addressing…
This is incomplete. To be fair, impartial, and in alignment with the actually observed historical record of this interpretive approach, you would need this following clarification:
….or if it does not support your ideological predispositions to begin with.
See Bush v. Gore.
There is also the issue of the ‘ladder of abstraction’ raised by Scott Lemieux in the link I cited above, and which none of the defenders here of so-called originalism have bothered to address.
“Keep in mind that the Citizens United decision also applied to labor unions.”
Unfortunately, the majority of the justices failed to keep that in mind when writing the Janus decision.
“Keep in mind that the Citizens United decision also applied to labor unions.”
Unfortunately, the majority of the justices failed to keep that in mind when writing the Janus decision.
“Emphasis mine, on the adverbs.”
If you look deeper into the poll it looks like generally means cases where the life of the mother is threatened (various serious sounding terms depending on the polls)
But if you want to say something like majority of 2nd trimester abortions that wouldn’t be misleading. (Except full disclosure, other polls make it sound like people really would prefer the cut off to be something in the 18-20 week zone instead of 16 weeks which changes the numbers noticeably. But that would still be unconstitutional with respect to Roe).
“Emphasis mine, on the adverbs.”
If you look deeper into the poll it looks like generally means cases where the life of the mother is threatened (various serious sounding terms depending on the polls)
But if you want to say something like majority of 2nd trimester abortions that wouldn’t be misleading. (Except full disclosure, other polls make it sound like people really would prefer the cut off to be something in the 18-20 week zone instead of 16 weeks which changes the numbers noticeably. But that would still be unconstitutional with respect to Roe).
GftNC: Are you telling me he objected on the basis it had to be cruel AND unusual?
No, GftNC. I was trying to convey to Seb, bc, and their fellow originalists (or textualists or whatever moniker they prefer) that even a simple conjunction needs interpretation.
And I was implying that high-fallutin’ defenses of the proposition that Scalia was anything but a self-satisfied ideologue are debatable, not self-evident.
I’m still waiting, BTW, for either Seb or bc to straightforwardly acknowledge that a lickspittle on the order of Brett Kavanaugh doesn’t belong on the SCOTUS — no matter which “judicial philosophy” a respectable citizen espouses.
–TP
GftNC: Are you telling me he objected on the basis it had to be cruel AND unusual?
No, GftNC. I was trying to convey to Seb, bc, and their fellow originalists (or textualists or whatever moniker they prefer) that even a simple conjunction needs interpretation.
And I was implying that high-fallutin’ defenses of the proposition that Scalia was anything but a self-satisfied ideologue are debatable, not self-evident.
I’m still waiting, BTW, for either Seb or bc to straightforwardly acknowledge that a lickspittle on the order of Brett Kavanaugh doesn’t belong on the SCOTUS — no matter which “judicial philosophy” a respectable citizen espouses.
–TP
It depends on what you mean by doesn’t belong. The McConnel maneuver was indefensible. So in that sense he doesn’t belong. Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.
My whole point is that letting the Supreme Court gain as much power as it has is bad for everything.
It depends on what you mean by doesn’t belong. The McConnel maneuver was indefensible. So in that sense he doesn’t belong. Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.
My whole point is that letting the Supreme Court gain as much power as it has is bad for everything.
Aha – Thank you Tony P. I am therefore free to continue despising him (which I would have in any case) without the trouble of adjusting my inadequately founded suppositions about his rationale!
Aha – Thank you Tony P. I am therefore free to continue despising him (which I would have in any case) without the trouble of adjusting my inadequately founded suppositions about his rationale!
Seb,
If you can remember Sotomayor kissing Obama’s ass as slavishly as Kavanaugh kissed He, Trump’s bloated pasty-white posterior, do remind me.
As for your whole point: what do you propose, in our litigious society with its adversarial legal system? I mean, can you suggest some way for the SCOTUS to functionally declare a tie when litigants (one of whom says X, and the other says not-X) won’t settle for the outcomes (often going back and forth) in the lower courts?
Or are you suggesting that our litigious society with its adversarial legal system should find ways to ignore the SCOTUS?
Or what?
–TP
Seb,
If you can remember Sotomayor kissing Obama’s ass as slavishly as Kavanaugh kissed He, Trump’s bloated pasty-white posterior, do remind me.
As for your whole point: what do you propose, in our litigious society with its adversarial legal system? I mean, can you suggest some way for the SCOTUS to functionally declare a tie when litigants (one of whom says X, and the other says not-X) won’t settle for the outcomes (often going back and forth) in the lower courts?
Or are you suggesting that our litigious society with its adversarial legal system should find ways to ignore the SCOTUS?
Or what?
–TP
But why go to principle when the text is clear?
…
nor shall private property be taken for public use, without just compensation.
The text is as plain as day. Private property may be taken for private use, and in fact may even be done so without just compensation.
But why go to principle when the text is clear?
…
nor shall private property be taken for public use, without just compensation.
The text is as plain as day. Private property may be taken for private use, and in fact may even be done so without just compensation.
This is close to an originalist position, but not quite
Yes, and the ‘not quite’ part is that I don’t try to imagine what an 18th C person would think the proper application of the principle would be.
I’m perfectly happy to consider what a 21st C person thinks the proper application of the principle should be.
Which is why no originalist – of any stripe – would consider me an originalist.
Unlike the Old Testament, the Constitution wasn’t written with any allegory or metaphors in it.
The particular passage I referred to is from Deuteronomy 25. It’s part of the Deuteronomic code. It was precisely the religious and civic code for the nation of Israel.
No metaphor, just a difference is historical and social context. I don’t have an ox.
I’m with Scalia. You don’t get beyond unless the text is unclear or ambiguous on the issue you are addressing.
If the text is not unclear or ambiguous on the issue you are addressing, it’s probably not on the SCOTUS docket.
The easy ones don’t make it to the Supremes.
This is close to an originalist position, but not quite
Yes, and the ‘not quite’ part is that I don’t try to imagine what an 18th C person would think the proper application of the principle would be.
I’m perfectly happy to consider what a 21st C person thinks the proper application of the principle should be.
Which is why no originalist – of any stripe – would consider me an originalist.
Unlike the Old Testament, the Constitution wasn’t written with any allegory or metaphors in it.
The particular passage I referred to is from Deuteronomy 25. It’s part of the Deuteronomic code. It was precisely the religious and civic code for the nation of Israel.
No metaphor, just a difference is historical and social context. I don’t have an ox.
I’m with Scalia. You don’t get beyond unless the text is unclear or ambiguous on the issue you are addressing.
If the text is not unclear or ambiguous on the issue you are addressing, it’s probably not on the SCOTUS docket.
The easy ones don’t make it to the Supremes.
Political motivations in favor of the rich and powerful are just as legitimate as political motivations in favor of the poor and powerless.
Discuss!
Political motivations in favor of the rich and powerful are just as legitimate as political motivations in favor of the poor and powerless.
Discuss!
If you can remember Sotomayor kissing Obama’s ass as slavishly as Kavanaugh kissed He, Trump’s bloated pasty-white posterior, do remind me.
Actually, I can’t remember any Supreme Court nominee doing anything remotely like Kavanaugh did. At least in the half century I have been paying attention. Most have had far too much self-respect (warranted or not) to sink to that level.
If you can remember Sotomayor kissing Obama’s ass as slavishly as Kavanaugh kissed He, Trump’s bloated pasty-white posterior, do remind me.
Actually, I can’t remember any Supreme Court nominee doing anything remotely like Kavanaugh did. At least in the half century I have been paying attention. Most have had far too much self-respect (warranted or not) to sink to that level.
Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.
are you sure?
http://www.newsweek.com/karl-rove-brett-kavanaugh-was-central-all-policy-decisions-bush-white-house-1015463
https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/10/daily-202-kavanaugh-s-paper-trail-makes-his-confirmation-harder-but-ensures-he-ll-be-reliably-conservative/5b4420ba1b326b3348adddfb/?noredirect=on&utm_term=.a6182cf7cdd5
Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.
are you sure?
http://www.newsweek.com/karl-rove-brett-kavanaugh-was-central-all-policy-decisions-bush-white-house-1015463
https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/10/daily-202-kavanaugh-s-paper-trail-makes-his-confirmation-harder-but-ensures-he-ll-be-reliably-conservative/5b4420ba1b326b3348adddfb/?noredirect=on&utm_term=.a6182cf7cdd5
Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.
Consider his view on legal proceedings against a President when the President (Clinton) was a Democrat vs his view on the subject when the President (Bush and now Trump) was a Republican. Do you have a similar discrepancy from Sotomayor?
It’s one thing to have a view which is, arguably, motivated by your political views. It’s another to change your view based on the party of the person involved.
Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.
Consider his view on legal proceedings against a President when the President (Clinton) was a Democrat vs his view on the subject when the President (Bush and now Trump) was a Republican. Do you have a similar discrepancy from Sotomayor?
It’s one thing to have a view which is, arguably, motivated by your political views. It’s another to change your view based on the party of the person involved.
See Bush v. Gore.
There is also the issue of the ‘ladder of abstraction’ raised by Scott Lemieux
Re Bush v. Gore, that case has, IMHO, many problems that have nothing to do with SCOTUS, not the least of which is Gore not asking for a statewide recount. And it was 7-2 on equal protection, if I recall.
As for your other point, I acknowledge it, bobbyp, also made by others here. I just don’t think hypocritical “originalism” justices is an argument against trying to at least apply the basic text in front of you. That approach doesn’t work every time, and I acknowledge that it can lead in some situations to absurd results. But it should still, IMHO, be the starting point.
And no, I don’t think it is always the starting point of some justices. I’m not saying the “living constitutionalists” do it in bad faith, mind you. But it makes me think of what I see as a problem with going with the “most qualified lawyer.” In my experience, a large percentage of the top 10% of any law school class are just awesome people. But there are those that, let us say, are kept away from client interaction as much as possible. And some of those that are sociable should be kept away from power tools.
Yet we gravitate towards those with a specific pedigree (Ivy League, top 10%, learned at the feet of previous SCOTUS, etc.) that might need some rethink.
I believe in a Constitution that should be accessible to any serious citizen, lawyer or not. I worry about the “ivory tower” theories that seem to grow like weeds out of the text. Substantive due process, frex. Something only an academic could come up with. I’d welcome a non-lawyer to SCOTUS in heartbeat. But they would have to demonstrate serious thought and consideration of the Constitution.
So back to your point, yes, I acknowledge some decisions by “originalists” that seem results oriented. I’d have to go back and read the predecessor to Gideon v. Wainwright to see if his point re Thomas is valid.
But I don’t think the “ladder of abstraction” is the end all on this topic either. I read it, I’m glad I did, and I’m thinking about it.
The Constitution has provisions that are precise and some that are not. I am perhaps a “pragmatic textualist,” requiring strict adherence to clear, unambiguous text. I am open to some extrapolation on text that is not quite so clear, such as “due process of law.” In fact, the text in some areas was purposefully broad giving some latitude to SCOTUS. I’m mindful that SCOTUS is more than one person. If it was so clear all the time, we’d only need one, right? But to say “text has no meaning” defeats, IMHO, the entire exercise of drafting the Constitution in the first place.
See Bush v. Gore.
There is also the issue of the ‘ladder of abstraction’ raised by Scott Lemieux
Re Bush v. Gore, that case has, IMHO, many problems that have nothing to do with SCOTUS, not the least of which is Gore not asking for a statewide recount. And it was 7-2 on equal protection, if I recall.
As for your other point, I acknowledge it, bobbyp, also made by others here. I just don’t think hypocritical “originalism” justices is an argument against trying to at least apply the basic text in front of you. That approach doesn’t work every time, and I acknowledge that it can lead in some situations to absurd results. But it should still, IMHO, be the starting point.
And no, I don’t think it is always the starting point of some justices. I’m not saying the “living constitutionalists” do it in bad faith, mind you. But it makes me think of what I see as a problem with going with the “most qualified lawyer.” In my experience, a large percentage of the top 10% of any law school class are just awesome people. But there are those that, let us say, are kept away from client interaction as much as possible. And some of those that are sociable should be kept away from power tools.
Yet we gravitate towards those with a specific pedigree (Ivy League, top 10%, learned at the feet of previous SCOTUS, etc.) that might need some rethink.
I believe in a Constitution that should be accessible to any serious citizen, lawyer or not. I worry about the “ivory tower” theories that seem to grow like weeds out of the text. Substantive due process, frex. Something only an academic could come up with. I’d welcome a non-lawyer to SCOTUS in heartbeat. But they would have to demonstrate serious thought and consideration of the Constitution.
So back to your point, yes, I acknowledge some decisions by “originalists” that seem results oriented. I’d have to go back and read the predecessor to Gideon v. Wainwright to see if his point re Thomas is valid.
But I don’t think the “ladder of abstraction” is the end all on this topic either. I read it, I’m glad I did, and I’m thinking about it.
The Constitution has provisions that are precise and some that are not. I am perhaps a “pragmatic textualist,” requiring strict adherence to clear, unambiguous text. I am open to some extrapolation on text that is not quite so clear, such as “due process of law.” In fact, the text in some areas was purposefully broad giving some latitude to SCOTUS. I’m mindful that SCOTUS is more than one person. If it was so clear all the time, we’d only need one, right? But to say “text has no meaning” defeats, IMHO, the entire exercise of drafting the Constitution in the first place.
I’m still waiting, BTW, for either Seb or bc to straightforwardly acknowledge that a lickspittle on the order of Brett Kavanaugh doesn’t belong on the SCOTUS
I already said I really didn’t like what he said about Trump’s selection process. Not very justice-like. But I don’t know that much about him, honestly. But apparently everyone in the news does. I do know John McCain really likes him, which means I probably should not!
I’m still waiting, BTW, for either Seb or bc to straightforwardly acknowledge that a lickspittle on the order of Brett Kavanaugh doesn’t belong on the SCOTUS
I already said I really didn’t like what he said about Trump’s selection process. Not very justice-like. But I don’t know that much about him, honestly. But apparently everyone in the news does. I do know John McCain really likes him, which means I probably should not!
Tony P:
If Al Franken puts you off, can I assume that you find He, Trump deplorable? Or are you, like Marty, willing to overlook his 10xFranken^2 moral shortcomings in light of His “(Republican) policies”?
(1) Trump is the DNC’s fault for running HRC. And now maybe HRC redux (or third time’s the “charm”)?
(2) I have never liked Trump. As in he lost me in the 80’s. I watched part of a season of Apprentice (don’t ask me why) and when Kim Kardashian was called “classy” I almost threw up. He is no Republican and frankly (pun intended) I would have considered him more a product of the left than the right, so some of his policies surprise me. He is definitely a lightning rod on policies and the unfortunate thing is people (me included) have a hard time keeping the policy separate from the person. For some that is easier. So I can like the result on some issues without liking the person/style. And it’s really hard when this particular “style” is POTUS. Give me some Reagan any day on style.
(3) I don’t think I know enough to state Trump is 10x Franken, groping and stolen election and all.
So what am I left with? The “rocket boy” comments remind me that I used to live within striking distance of North Korea (and on the short list of USSR first strike areas) and I had that familiar cognitive dissonance go through my head that I had during the cold war as a kid (life appears to be good but a mushroom cloud could ruin your whole day). Yet I have long thought the “diplomacy” of the elite State people could use a shake up. I just didn’t think it would be THIS. But who else would show up at NATO and say what he said?
So, no, I don’t have a MAGA hat. (But did you seem the meme with GW wearing the “Make America” hat? Lol.
Tony P:
If Al Franken puts you off, can I assume that you find He, Trump deplorable? Or are you, like Marty, willing to overlook his 10xFranken^2 moral shortcomings in light of His “(Republican) policies”?
(1) Trump is the DNC’s fault for running HRC. And now maybe HRC redux (or third time’s the “charm”)?
(2) I have never liked Trump. As in he lost me in the 80’s. I watched part of a season of Apprentice (don’t ask me why) and when Kim Kardashian was called “classy” I almost threw up. He is no Republican and frankly (pun intended) I would have considered him more a product of the left than the right, so some of his policies surprise me. He is definitely a lightning rod on policies and the unfortunate thing is people (me included) have a hard time keeping the policy separate from the person. For some that is easier. So I can like the result on some issues without liking the person/style. And it’s really hard when this particular “style” is POTUS. Give me some Reagan any day on style.
(3) I don’t think I know enough to state Trump is 10x Franken, groping and stolen election and all.
So what am I left with? The “rocket boy” comments remind me that I used to live within striking distance of North Korea (and on the short list of USSR first strike areas) and I had that familiar cognitive dissonance go through my head that I had during the cold war as a kid (life appears to be good but a mushroom cloud could ruin your whole day). Yet I have long thought the “diplomacy” of the elite State people could use a shake up. I just didn’t think it would be THIS. But who else would show up at NATO and say what he said?
So, no, I don’t have a MAGA hat. (But did you seem the meme with GW wearing the “Make America” hat? Lol.
Except full disclosure, other polls make it sound like people really would prefer the cut off to be something in the 18-20 week zone instead of 16 weeks which changes the numbers noticeably. But that would still be unconstitutional with respect to Roe
So a significant minority, more than a third, of people want abortion to be unrestricted in the second trimester. Of those not in that minority, some number, perhaps most, want it to be legal if the woman is in some kind of jeopardy. Some of those people would like restrictions placed somewhere within the second trimester rather than at the start.
Based on all of this, you’re making the case that Roe is out of the mainstream, because it doesn’t get to exactly what a not-overwhelming majorty of people want specifically within the second trimester, even though overwhelming majorities agree with the ruling in the first and third trimesters.
Well … okay.
Except full disclosure, other polls make it sound like people really would prefer the cut off to be something in the 18-20 week zone instead of 16 weeks which changes the numbers noticeably. But that would still be unconstitutional with respect to Roe
So a significant minority, more than a third, of people want abortion to be unrestricted in the second trimester. Of those not in that minority, some number, perhaps most, want it to be legal if the woman is in some kind of jeopardy. Some of those people would like restrictions placed somewhere within the second trimester rather than at the start.
Based on all of this, you’re making the case that Roe is out of the mainstream, because it doesn’t get to exactly what a not-overwhelming majorty of people want specifically within the second trimester, even though overwhelming majorities agree with the ruling in the first and third trimesters.
Well … okay.
“All men are created equal” was not intended as a metaphor by the 39 signers of the Constitution. We don’t know what the other 16 attendees believe dwho refused to sign the thing. And who knows what the other 20 or so invitees thought who called in sick or were waylaid by impossible portages.
Happily, the Supreme Court eventually agreed, way too late, with the unpropertied, Native Americans, African Americans, and women, among others, that “All men are created equal” was a metaphor that also referred to them, despite the fact that the 39 literally were not referring to them.
They were referring to the fact they were propertied white men on an equal footing. Extending the man franchise to the Others was greeted each go-round as Fake News.
In many ways, it WAS all about the plumbing.
And how is the statement “that they are endowed by their Creator with certain inalienable rights” not a metaphor of sorts.
Perhaps a guess. At best an assertion.
Describe what “Creator” means. What is it? Point to it.
You can’t do it without referencing metaphors and similes.
“All men are created equal” was not intended as a metaphor by the 39 signers of the Constitution. We don’t know what the other 16 attendees believe dwho refused to sign the thing. And who knows what the other 20 or so invitees thought who called in sick or were waylaid by impossible portages.
Happily, the Supreme Court eventually agreed, way too late, with the unpropertied, Native Americans, African Americans, and women, among others, that “All men are created equal” was a metaphor that also referred to them, despite the fact that the 39 literally were not referring to them.
They were referring to the fact they were propertied white men on an equal footing. Extending the man franchise to the Others was greeted each go-round as Fake News.
In many ways, it WAS all about the plumbing.
And how is the statement “that they are endowed by their Creator with certain inalienable rights” not a metaphor of sorts.
Perhaps a guess. At best an assertion.
Describe what “Creator” means. What is it? Point to it.
You can’t do it without referencing metaphors and similes.
Speaking of fake news, Facebook can go fuck itself.
https://www.motherjones.com/kevin-drum/2018/07/facebook-decides-that-its-big-problem-is-fake-liberal-news/
Speaking of fake news, Facebook can go fuck itself.
https://www.motherjones.com/kevin-drum/2018/07/facebook-decides-that-its-big-problem-is-fake-liberal-news/
I hesitate to say this because of inevitable inflation, but Trump appears to have outdone himself today in an interview with Rupert Murdoch’s Sun. This is not the interview, but gives some snippets:
https://www.thesun.co.uk/news/6766777/donald-trump-sadiq-khan-terrorism-terror/
Apart from claiming it’s the mayor’s fault there are so many immigrants in London (I know it’s absurd to still be astonished at his ignorance, but it still absolutely boggles the mind) and therefore so much terrorism, he apparently also says he told Theresa May how to negotiate Brexit, she didn’t listen, did the exact opposite, and that if her current Brexit plan goes ahead it almost certainly means no trade deal with the US. It’s unclear if she knew any of this til a few minutes ago, since she has just been hosting him at a formal dinner at Blenheim Palace.
Although it was undiplomatic of him to say so at NATO (surprise surprise), he was right that there is turmoil here over Brexit. But that turmoil was as nothing compared to what will no doubt now be unleashed….
I hesitate to say this because of inevitable inflation, but Trump appears to have outdone himself today in an interview with Rupert Murdoch’s Sun. This is not the interview, but gives some snippets:
https://www.thesun.co.uk/news/6766777/donald-trump-sadiq-khan-terrorism-terror/
Apart from claiming it’s the mayor’s fault there are so many immigrants in London (I know it’s absurd to still be astonished at his ignorance, but it still absolutely boggles the mind) and therefore so much terrorism, he apparently also says he told Theresa May how to negotiate Brexit, she didn’t listen, did the exact opposite, and that if her current Brexit plan goes ahead it almost certainly means no trade deal with the US. It’s unclear if she knew any of this til a few minutes ago, since she has just been hosting him at a formal dinner at Blenheim Palace.
Although it was undiplomatic of him to say so at NATO (surprise surprise), he was right that there is turmoil here over Brexit. But that turmoil was as nothing compared to what will no doubt now be unleashed….
https://www.thesun.co.uk/news/6766531/trump-may-brexit-us-deal-off/
https://www.thesun.co.uk/news/6766531/trump-may-brexit-us-deal-off/
Britain and the European country governments should issue orders to turn back all international flights originating in America, and if they do land, they should shoot any American who attempts to disembark.
Arrest all American tourists and business travelers and separate their children from them.
If I attempt to set foot in Britain or Europe, I should be shot in the head by their security forces because I am a subhuman, lying, double-crossing piece of dogshit American who has done nothing to fucking destroy mp and the republican party, the most dangerous organization on the face of the Earth.
Never converse, negotiate, and certainly never sign any treaty with pigfucking two-faced vermin Americans or their gummint.
We steal, we lie, we fuck anyone who offers a hand.
When in the presence of an American, keep the safety off and the gun cocked. Shoot us if we make any sudden move.
Poison our sushi. We’re fucking scum. We’re Russians. Why would anyone trust any of us?
We need to be hurt badly by EVERYONE.
Britain and the European country governments should issue orders to turn back all international flights originating in America, and if they do land, they should shoot any American who attempts to disembark.
Arrest all American tourists and business travelers and separate their children from them.
If I attempt to set foot in Britain or Europe, I should be shot in the head by their security forces because I am a subhuman, lying, double-crossing piece of dogshit American who has done nothing to fucking destroy mp and the republican party, the most dangerous organization on the face of the Earth.
Never converse, negotiate, and certainly never sign any treaty with pigfucking two-faced vermin Americans or their gummint.
We steal, we lie, we fuck anyone who offers a hand.
When in the presence of an American, keep the safety off and the gun cocked. Shoot us if we make any sudden move.
Poison our sushi. We’re fucking scum. We’re Russians. Why would anyone trust any of us?
We need to be hurt badly by EVERYONE.
Republican politicians are cutting out the middle men and doing the killing directly:
http://juanitajean.com/fun-with-guns-political-consultant-weirdness-edition/
Republican politicians are cutting out the middle men and doing the killing directly:
http://juanitajean.com/fun-with-guns-political-consultant-weirdness-edition/
Republicans and conservatives are sadistic murderous shitheels.
https://www.motherjones.com/kevin-drum/2018/07/republicans-finally-kill-off-valuable-medical-database-their-donors-hate/
This country has no idea of the ferocious killing fury, the tidal wave of blood vengeance, that is coming down on the heads of 51% of the country and your subhuman children and your stinking mothers.
Republicans and conservatives are sadistic murderous shitheels.
https://www.motherjones.com/kevin-drum/2018/07/republicans-finally-kill-off-valuable-medical-database-their-donors-hate/
This country has no idea of the ferocious killing fury, the tidal wave of blood vengeance, that is coming down on the heads of 51% of the country and your subhuman children and your stinking mothers.
May’s plan is for the UK to trade manufactured goods freely with the EU, and make its own tariff arrangements with the rest of the world. That means it will adhere to EU regulatory standards in manufactured goods.
If that plan is unacceptable to Trump, it must be because there’s something in EU standards he dislikes and wants the UK to change as part of a trade deal. Perhaps the last person he spoke to told him how important it is that the UK should import chlorine-washed chickens from the USA.
Or he’s just bloviating.
May’s plan is for the UK to trade manufactured goods freely with the EU, and make its own tariff arrangements with the rest of the world. That means it will adhere to EU regulatory standards in manufactured goods.
If that plan is unacceptable to Trump, it must be because there’s something in EU standards he dislikes and wants the UK to change as part of a trade deal. Perhaps the last person he spoke to told him how important it is that the UK should import chlorine-washed chickens from the USA.
Or he’s just bloviating.
Sorry, just to go back a bit. I’m trying to understand something here. There is this idea that I think Sebastian is putting forward (and maybe bc as well?) that abortion (and it seems to be open to be extended to other issues) should be a question of popular opinion and then aims to show how Roe is wrong in regards to current public opinion. (if I’m misunderstanding something, please let me know)
Janie points out that there are several historical cusps that required the Supreme Court to move ahead of public opinion. In addition to that, there is also what I think wj suggests, which is that public opinion is not something fixed in stone and the recent changes with regard to gay marriage should make any argument like this suspect. So that’s two things.
But in addition to those two things, I’ve got another one. If someone is arguing for a ‘pro-life’ position, how could it be dependent on public opinion? I would think that anyone arguing such a position must think that there are bright lines, so arguing about popular opinion seems like less a way to state beliefs and more of a way to try to win the debate without invoking morality. At it’s base, it seems like a way to hide the fact (either to other people in the discussion or obscuring it for oneself) that what is being made is a moral argument, much like the one against gay marriage (an opinion that changed remarkably quickly when gays began to come out of the closet and people were confronted by the fact that people they knew were being punished). So does that give anyone pushing a decision based on public opinion any pause?
I feel like an argument like this shouldn’t be dependent on polls because if that’s the case, the argument will rise or fall based on how in conforms with other people’s moral judgements, which change with time and circumstances. Also, these moral judgements should logically do things like punish the woman for any miscarriage or fetal endangerment, or require a committment to universal access to birth control and sex education. Yet that is never discussed, the focus is preventing woman from having access to abortions.
I don’t often go into this debate because the situation in Japan is so different, but I can’t help but think (and this must sound strange, but bear with me a bit) that the problem is one of privilege. As a cis-gender male, I really don’t think I have the standing to make a call on this and that’s one reason I don’t get into these discussions. If I were asked for advice from someone, I would offer it, but it would totally depend on their individual circumstances. So if I were confronted by a a person wanting to know my opinion, I’d politely say I really can’t say. And while everyone thinks their opinions are what everyone else thinks, if there were a large number of people like me, I think that would further undermine the idea of an opinion poll controlling a decision. Any position I would take would not be universal, but only for a particular case.
How does all this relate to privilege? Well, when I feel like I can speak for someone else, or tell them what’s best, I’m invoking privilege. I know that some folks who drop in here have a big problem with the concept, but I think the reason they get upset about it is they feel it makes a claim that they didn’t earn what they have, that it was somehow given to them. While I can see how they might think that, it is really a crabbed view of it. No one would say that the players of Munich Phil were just given their jobs because they were men, but when you read about Abbie Conant, if you know how competitive orchestral positions are, you can realize that someone can simultaneously work very hard to get to where he is, but still benefit from privilege.
Because I think there is a question of privilege, this recourse to opinion polls has me scratching my head. If someone came up to me and asked what I thought about her having an abortion, not as a hypothetical but as an actual situation, I certainly wouldn’t cite polls to her, I’d speak about what I thought was right or wrong. And I can’t imagine speaking with any kind of authority to people who have situations that I don’t have any knowledge of about what they should do in a situation like that. Is there a reason why I should be able to do that?
Sorry, just to go back a bit. I’m trying to understand something here. There is this idea that I think Sebastian is putting forward (and maybe bc as well?) that abortion (and it seems to be open to be extended to other issues) should be a question of popular opinion and then aims to show how Roe is wrong in regards to current public opinion. (if I’m misunderstanding something, please let me know)
Janie points out that there are several historical cusps that required the Supreme Court to move ahead of public opinion. In addition to that, there is also what I think wj suggests, which is that public opinion is not something fixed in stone and the recent changes with regard to gay marriage should make any argument like this suspect. So that’s two things.
But in addition to those two things, I’ve got another one. If someone is arguing for a ‘pro-life’ position, how could it be dependent on public opinion? I would think that anyone arguing such a position must think that there are bright lines, so arguing about popular opinion seems like less a way to state beliefs and more of a way to try to win the debate without invoking morality. At it’s base, it seems like a way to hide the fact (either to other people in the discussion or obscuring it for oneself) that what is being made is a moral argument, much like the one against gay marriage (an opinion that changed remarkably quickly when gays began to come out of the closet and people were confronted by the fact that people they knew were being punished). So does that give anyone pushing a decision based on public opinion any pause?
I feel like an argument like this shouldn’t be dependent on polls because if that’s the case, the argument will rise or fall based on how in conforms with other people’s moral judgements, which change with time and circumstances. Also, these moral judgements should logically do things like punish the woman for any miscarriage or fetal endangerment, or require a committment to universal access to birth control and sex education. Yet that is never discussed, the focus is preventing woman from having access to abortions.
I don’t often go into this debate because the situation in Japan is so different, but I can’t help but think (and this must sound strange, but bear with me a bit) that the problem is one of privilege. As a cis-gender male, I really don’t think I have the standing to make a call on this and that’s one reason I don’t get into these discussions. If I were asked for advice from someone, I would offer it, but it would totally depend on their individual circumstances. So if I were confronted by a a person wanting to know my opinion, I’d politely say I really can’t say. And while everyone thinks their opinions are what everyone else thinks, if there were a large number of people like me, I think that would further undermine the idea of an opinion poll controlling a decision. Any position I would take would not be universal, but only for a particular case.
How does all this relate to privilege? Well, when I feel like I can speak for someone else, or tell them what’s best, I’m invoking privilege. I know that some folks who drop in here have a big problem with the concept, but I think the reason they get upset about it is they feel it makes a claim that they didn’t earn what they have, that it was somehow given to them. While I can see how they might think that, it is really a crabbed view of it. No one would say that the players of Munich Phil were just given their jobs because they were men, but when you read about Abbie Conant, if you know how competitive orchestral positions are, you can realize that someone can simultaneously work very hard to get to where he is, but still benefit from privilege.
Because I think there is a question of privilege, this recourse to opinion polls has me scratching my head. If someone came up to me and asked what I thought about her having an abortion, not as a hypothetical but as an actual situation, I certainly wouldn’t cite polls to her, I’d speak about what I thought was right or wrong. And I can’t imagine speaking with any kind of authority to people who have situations that I don’t have any knowledge of about what they should do in a situation like that. Is there a reason why I should be able to do that?
As a cis-gender male, I really don’t think I have the standing to make a call on this and that’s one reason I don’t get into these discussions….
While I agree with that, it is precisely why I’m strongly of the opinion that it should be a woman’s right to choose.
As a cis-gender male, I really don’t think I have the standing to make a call on this and that’s one reason I don’t get into these discussions….
While I agree with that, it is precisely why I’m strongly of the opinion that it should be a woman’s right to choose.
Trump is the DNC’s fault for running HRC.
calloo, callay, it’s conspiracy day.
hey, you do know that there was a months-long series of elections, win which HRC received a decisive majority of votes, right?
Trump is the DNC’s fault for running HRC.
calloo, callay, it’s conspiracy day.
hey, you do know that there was a months-long series of elections, win which HRC received a decisive majority of votes, right?
Trump is the DNC’s fault for running HRC
I’m sorry but this is garbage.
The (R)’s nominated the guy. 62+ million people voted for him.
That is why he is the POTUS.
I’ll also say that the whole “his personality sucks but the policies are ok” thing elides the fact that he’s a freaking crook. And, that the simplest explanation by the Ockhamian measure for his behavior on foreign policy is that he’s being run as an asset by Vladimir Putin.
(R)’s nominated the guy, (R)’s voted him into office, and most of those folks were the proverbial dentists with boats.
He is surely an embarassment and a danger to the nation, but if you’re a (R), that’s on you, not HRC.
It’s on you.
Trump is the DNC’s fault for running HRC
I’m sorry but this is garbage.
The (R)’s nominated the guy. 62+ million people voted for him.
That is why he is the POTUS.
I’ll also say that the whole “his personality sucks but the policies are ok” thing elides the fact that he’s a freaking crook. And, that the simplest explanation by the Ockhamian measure for his behavior on foreign policy is that he’s being run as an asset by Vladimir Putin.
(R)’s nominated the guy, (R)’s voted him into office, and most of those folks were the proverbial dentists with boats.
He is surely an embarassment and a danger to the nation, but if you’re a (R), that’s on you, not HRC.
It’s on you.
and, while we chat about the niceties of interpreting 18th C documents, America is earning it’s very own special place in hell.
and, while we chat about the niceties of interpreting 18th C documents, America is earning it’s very own special place in hell.
Perhaps it’s the twisted weirdness that lives inside my skull, but I see “privilege” in terms of D&D character generation:
You get a big ‘plus’ from being white.
You get a big ‘minus’ for being black.
You get a smaller ‘minus’ for being latino.
You get a ‘plus’ for being male.
You get a ‘plus’ for being old.
You get a ‘plus’ for being hetero.
You get a ‘plus’ for having the right accent.
Add ’em up, then add your 3D6 roll and look up the result in the table to see what you got. Not much of it is under your control, but perhaps you’ll manage to pick up the “+5 Sword Of Biting Sarcasm” and do okay.
It’s Gygax and Arneson’s universe, we’re just living in it.
Perhaps it’s the twisted weirdness that lives inside my skull, but I see “privilege” in terms of D&D character generation:
You get a big ‘plus’ from being white.
You get a big ‘minus’ for being black.
You get a smaller ‘minus’ for being latino.
You get a ‘plus’ for being male.
You get a ‘plus’ for being old.
You get a ‘plus’ for being hetero.
You get a ‘plus’ for having the right accent.
Add ’em up, then add your 3D6 roll and look up the result in the table to see what you got. Not much of it is under your control, but perhaps you’ll manage to pick up the “+5 Sword Of Biting Sarcasm” and do okay.
It’s Gygax and Arneson’s universe, we’re just living in it.
I know nothing of D&D Snarki, but speaking for myself the weirdness that lives inside your skull is one of the incidental pleasures of this rich tapestry….
I know nothing of D&D Snarki, but speaking for myself the weirdness that lives inside your skull is one of the incidental pleasures of this rich tapestry….
b.b.b.b.b.but there are poor white people! i’ve seen them!
so much for that “privilege”, huh libs?!
[actual argument repeated here every time the word ‘privilege’ shows up]
b.b.b.b.b.but there are poor white people! i’ve seen them!
so much for that “privilege”, huh libs?!
[actual argument repeated here every time the word ‘privilege’ shows up]
It’s the DNC’s and Clinton’s fault as well that this cast of corrupt characters destroys America from within the rooms we rent them on Capitol Hill.
There will no end of something wicked this way comes and wicked is coming to them personally:
https://www.esquire.com/news-politics/politics/a22134841/peter-strzok-testimony-what-happened/
It’s the DNC’s and Clinton’s fault as well that this cast of corrupt characters destroys America from within the rooms we rent them on Capitol Hill.
There will no end of something wicked this way comes and wicked is coming to them personally:
https://www.esquire.com/news-politics/politics/a22134841/peter-strzok-testimony-what-happened/
The freak-show profiles of the GOP reps on the panel is fantastic.
The freak-show profiles of the GOP reps on the panel is fantastic.
I’ll also say that the whole “his personality sucks but the policies are ok” thing elides the fact that he’s a freaking crook.
Not what I said (or at least not what I meant to say) but I do not miss your point on the first part of that sentence. I mean honestly, how could I not? Trump is not subtle. I’m not saying for me I can live with him because of his policies. I simply said I will not deny that some policies I like (and some I do not).
On the second, well, HRC. I’ll wait until the investigations are over. Too much to go into there.
Yes, I was being somewhat snarky in blaming HRC. Sure, the R’s nominated him and the R’s and a lot of blue-collar D’s elected him. Yes, in that sense they are responsible. But I’m not looking at the mechanics of what happened. I’m looking at what led to his success in the first place. Why people were looking at something different that the “swamp.” Had a decent candidate gotten the nomination, things might have been different. Each side nominates with more than a little thought and consideration to what the other side will or has done.
hey, you do know that there was a months-long series of elections, win which HRC received a decisive majority of votes, right?
Analysis such as “she won more votes” is why she LOST. Keep that up, DNC.
I’ll also say that the whole “his personality sucks but the policies are ok” thing elides the fact that he’s a freaking crook.
Not what I said (or at least not what I meant to say) but I do not miss your point on the first part of that sentence. I mean honestly, how could I not? Trump is not subtle. I’m not saying for me I can live with him because of his policies. I simply said I will not deny that some policies I like (and some I do not).
On the second, well, HRC. I’ll wait until the investigations are over. Too much to go into there.
Yes, I was being somewhat snarky in blaming HRC. Sure, the R’s nominated him and the R’s and a lot of blue-collar D’s elected him. Yes, in that sense they are responsible. But I’m not looking at the mechanics of what happened. I’m looking at what led to his success in the first place. Why people were looking at something different that the “swamp.” Had a decent candidate gotten the nomination, things might have been different. Each side nominates with more than a little thought and consideration to what the other side will or has done.
hey, you do know that there was a months-long series of elections, win which HRC received a decisive majority of votes, right?
Analysis such as “she won more votes” is why she LOST. Keep that up, DNC.
There is this idea that I think Sebastian is putting forward (and maybe bc as well?)
Can’t speak for Seb, but I haven’t spoken to the issue. But since you asked . . .
I don’t think SCOTUS decisions should have anything to do with popular opinion. By design.
And no, SCOTUS wasn’t “required” to move in front of public opinion in any situation to move public opinion forward. SCOTUS may be “required” to do things because the Constitution says so regardless of public opinion and the opinion follows, but that is a different thing. The danger with living constitutionalists is that they, being enlightened, decide that the Constitution should say what they think and then stitch together an argument out of the penumbra.
As for the specific issue you mention, I feel similar to you, lj. I’m male. I never feel like bringing my full debating skills (meager though they are) to the question because of that.
There is this idea that I think Sebastian is putting forward (and maybe bc as well?)
Can’t speak for Seb, but I haven’t spoken to the issue. But since you asked . . .
I don’t think SCOTUS decisions should have anything to do with popular opinion. By design.
And no, SCOTUS wasn’t “required” to move in front of public opinion in any situation to move public opinion forward. SCOTUS may be “required” to do things because the Constitution says so regardless of public opinion and the opinion follows, but that is a different thing. The danger with living constitutionalists is that they, being enlightened, decide that the Constitution should say what they think and then stitch together an argument out of the penumbra.
As for the specific issue you mention, I feel similar to you, lj. I’m male. I never feel like bringing my full debating skills (meager though they are) to the question because of that.
SCOTUS wasn’t “required” to move in front of public opinion in any situation to move public opinion forward
Just to be clear, I was speaking historically, where the SoC did step up. ‘required’ can be read as ‘if they hadn’t done it, we’d be in a pile of sh*t’. I don’t feel that the SoC has a requirement of getting out ahead of public opinion, but there have been times in our history where the SoC has had to be the agent of change.
SCOTUS wasn’t “required” to move in front of public opinion in any situation to move public opinion forward
Just to be clear, I was speaking historically, where the SoC did step up. ‘required’ can be read as ‘if they hadn’t done it, we’d be in a pile of sh*t’. I don’t feel that the SoC has a requirement of getting out ahead of public opinion, but there have been times in our history where the SoC has had to be the agent of change.
these moral judgements should logically do things like punish the woman for any miscarriage or fetal endangerment, or require a committment to universal access to birth control and sex education.
I sometimes feel like a broken record. But any time someone claims to be of the “abortion is murder” view, I have to ask about his position on sex ed and access to birth control. Because if he isn’t strongly in favor of both, his objection to abortion is simply a massive fraud — even if he is fooling himself as well as those he interacts with. And I have yet to come across a convincing argument otherwise.
these moral judgements should logically do things like punish the woman for any miscarriage or fetal endangerment, or require a committment to universal access to birth control and sex education.
I sometimes feel like a broken record. But any time someone claims to be of the “abortion is murder” view, I have to ask about his position on sex ed and access to birth control. Because if he isn’t strongly in favor of both, his objection to abortion is simply a massive fraud — even if he is fooling himself as well as those he interacts with. And I have yet to come across a convincing argument otherwise.
The danger with living constitutionalists is that they, being enlightened, decide that the Constitution should say what they think and then stitch together an argument out of the penumbra.
Self-described originalists, on the other hand, are pure of heart and never stitch arguments together (because they’re really and truly “enlightened”).
Also, too, what russell said about “living constitutionalists.” Originalists seem to be the only people who call anyone that, as needed and for convenience.
The danger with living constitutionalists is that they, being enlightened, decide that the Constitution should say what they think and then stitch together an argument out of the penumbra.
Self-described originalists, on the other hand, are pure of heart and never stitch arguments together (because they’re really and truly “enlightened”).
Also, too, what russell said about “living constitutionalists.” Originalists seem to be the only people who call anyone that, as needed and for convenience.
bc: I don’t think SCOTUS decisions should have anything to do with popular opinion.
I will accept “with current popular opinion”, but that’s as far as I’m willing to go.
That SCOTUS decisions should have nothing to do with popular opinion at all, ever, is of course ridiculous except in autocracies, theocracies, and country clubs. Even the Seekers After Fixed Rules probably agree that “popular opinion” had something to do with adoption of the Constitution from which the very existence of a SCOTUS flows.
In fact, one suspects that the Seekers After Fixed Rules simply prefer the “popular opinions” of the past to be fossilized into SCOTUS decisions for the foreseeable future.
Speaking of which, I still have not seen a straightforward statement from the Seekers After Fixed Rules that Brett Kavanaugh, slavish toady, doesn’t belong on the SCOTUS.
Now: I have said many times that persons deserve respect but opinions do not. So:
(1) Trump is the DNC’s fault for running HRC.
This opinion is a black hole of stupid so dense that it threatens to suck all rationality out of the solar system.
The following opinions, OTOH …
(2) I have never liked Trump. As in he lost me in the 80’s.
(3) I don’t think I know enough to state Trump is 10x Franken, groping and stolen election and all.
… seem like mere cognitive dissonance.
I’d ask whether “groping and stolen election and all” refers to He, Trump or Al Franken, but I’m afraid to let the black hole get any bigger.
–TP
bc: I don’t think SCOTUS decisions should have anything to do with popular opinion.
I will accept “with current popular opinion”, but that’s as far as I’m willing to go.
That SCOTUS decisions should have nothing to do with popular opinion at all, ever, is of course ridiculous except in autocracies, theocracies, and country clubs. Even the Seekers After Fixed Rules probably agree that “popular opinion” had something to do with adoption of the Constitution from which the very existence of a SCOTUS flows.
In fact, one suspects that the Seekers After Fixed Rules simply prefer the “popular opinions” of the past to be fossilized into SCOTUS decisions for the foreseeable future.
Speaking of which, I still have not seen a straightforward statement from the Seekers After Fixed Rules that Brett Kavanaugh, slavish toady, doesn’t belong on the SCOTUS.
Now: I have said many times that persons deserve respect but opinions do not. So:
(1) Trump is the DNC’s fault for running HRC.
This opinion is a black hole of stupid so dense that it threatens to suck all rationality out of the solar system.
The following opinions, OTOH …
(2) I have never liked Trump. As in he lost me in the 80’s.
(3) I don’t think I know enough to state Trump is 10x Franken, groping and stolen election and all.
… seem like mere cognitive dissonance.
I’d ask whether “groping and stolen election and all” refers to He, Trump or Al Franken, but I’m afraid to let the black hole get any bigger.
–TP
Liberal_japonicus, you have a recurring thought in your latest comment that seems to be based on a misunderstanding. You say things like “show how Roe is wrong in regards to current public opinion”; “required the Supreme Court to move ahead of public opinion”; “the argument will rise or fall based on how it conforms with other people’s moral judgements, which change with time and circumstances”;
I’m going to try to Steelman your argument, take the strongest case I can think of and then compare it to Roe. I think the strongest case is Loving v. Virginia. There you could say that the Supreme Court got ahead of the country’s comfort level with racial intermarriage by a strong degree. They got ahead of the state level treatment (another factor often cited by living constitutionalists) by a much lesser degree but still noticeable. At the time of the ruling, if my counting is correct, 33 states allowed interracial marriage. Further evidence that the Supreme Court was ahead of the nation (but in a direction that it was going) is found in the fact that in the years just before the ruling, about 13 states repealed their laws forbidding inter-racial marriage. Better still for your case, approval of interracial marriage has improved consistently and dramatically since then (see the graph I linked above).
So from the point of view of non-damaging living constitutionalist intervention, Loving looks very good. The Court intervened early, in a very contentious issue, but did so in a way that correctly anticipated a change in the long term views of the nation. It did so right about the time that a supermajority of the states agreed with it, but at a point where the population did not.
From the point of view of someone who takes textualism seriously (but may or may not be an originalist) the Loving ruling is much more grounded in the text than the Roe ruling. The 14th Amendment was clearly meant to apply to the states and was directly passed in response to concerns about states mistreating black people. (Though the much maligned privileges and immunities clause fits it better than equal protection but whatever).
Roe on the other hand has NOT seen a public shift anything like Loving. 45 years in, almost exactly the same percentage of people think that abortions should be sharply curtailed in the second trimester rather than the third–something which is not permitted by Roe. And that percentage is about 65-70%. Invoking the vagaries of public opinion isn’t appropriate in this case, because public opinion has been remarkably steady.
So even if one accepts the living constitutionalist frame that it is ok to sometimes both go beyond the text, and get a bit ahead of public opinion, there is a very good argument that either Roe is not such a case, or that it attempted to be such a case, but its failure to move public opinion in 45 years suggests that we not give its attempt much deference.
Even if you accept the living constitutionalist frame, there has to be a mechanism where when the living constitutionalist Court gets something wrong, incorrectly anticipates public opinion, those rulings should be treated with less significance because the explanation for why it is ok to semi-amend the Constitution through the Court loses its force if the anticipated change non only never comes in full force, but in fact doesn’t move at all.
(And this isn’t directed at l_j, but if someone wants to explain Loving working out because racism has decreased, I’m going to want a very deep look at that, rather than a throw away line in light of the current state of the country).
This also explains why I’m invoking opinion polls. Because I think living constitutionalism has its strongest justification when it can claim to have actually anticipated the direction of the country (i.e. this is where we were going and we shouldn’t cause lots of suffering while waiting to get there), and at its weakest justification when decades later it did not.
Liberal_japonicus, you have a recurring thought in your latest comment that seems to be based on a misunderstanding. You say things like “show how Roe is wrong in regards to current public opinion”; “required the Supreme Court to move ahead of public opinion”; “the argument will rise or fall based on how it conforms with other people’s moral judgements, which change with time and circumstances”;
I’m going to try to Steelman your argument, take the strongest case I can think of and then compare it to Roe. I think the strongest case is Loving v. Virginia. There you could say that the Supreme Court got ahead of the country’s comfort level with racial intermarriage by a strong degree. They got ahead of the state level treatment (another factor often cited by living constitutionalists) by a much lesser degree but still noticeable. At the time of the ruling, if my counting is correct, 33 states allowed interracial marriage. Further evidence that the Supreme Court was ahead of the nation (but in a direction that it was going) is found in the fact that in the years just before the ruling, about 13 states repealed their laws forbidding inter-racial marriage. Better still for your case, approval of interracial marriage has improved consistently and dramatically since then (see the graph I linked above).
So from the point of view of non-damaging living constitutionalist intervention, Loving looks very good. The Court intervened early, in a very contentious issue, but did so in a way that correctly anticipated a change in the long term views of the nation. It did so right about the time that a supermajority of the states agreed with it, but at a point where the population did not.
From the point of view of someone who takes textualism seriously (but may or may not be an originalist) the Loving ruling is much more grounded in the text than the Roe ruling. The 14th Amendment was clearly meant to apply to the states and was directly passed in response to concerns about states mistreating black people. (Though the much maligned privileges and immunities clause fits it better than equal protection but whatever).
Roe on the other hand has NOT seen a public shift anything like Loving. 45 years in, almost exactly the same percentage of people think that abortions should be sharply curtailed in the second trimester rather than the third–something which is not permitted by Roe. And that percentage is about 65-70%. Invoking the vagaries of public opinion isn’t appropriate in this case, because public opinion has been remarkably steady.
So even if one accepts the living constitutionalist frame that it is ok to sometimes both go beyond the text, and get a bit ahead of public opinion, there is a very good argument that either Roe is not such a case, or that it attempted to be such a case, but its failure to move public opinion in 45 years suggests that we not give its attempt much deference.
Even if you accept the living constitutionalist frame, there has to be a mechanism where when the living constitutionalist Court gets something wrong, incorrectly anticipates public opinion, those rulings should be treated with less significance because the explanation for why it is ok to semi-amend the Constitution through the Court loses its force if the anticipated change non only never comes in full force, but in fact doesn’t move at all.
(And this isn’t directed at l_j, but if someone wants to explain Loving working out because racism has decreased, I’m going to want a very deep look at that, rather than a throw away line in light of the current state of the country).
This also explains why I’m invoking opinion polls. Because I think living constitutionalism has its strongest justification when it can claim to have actually anticipated the direction of the country (i.e. this is where we were going and we shouldn’t cause lots of suffering while waiting to get there), and at its weakest justification when decades later it did not.
So we now go to SCOTUS for what should be active political questions to “amend” the Constitution. And I don’t think that is healthy.
Healthy or not, it is really the only option.
The amendment process simply does not work. We have had twenty-seven. Ten were really not amendments at all, and three required a civil war. Two cancel each other out, and most of the rest are procedural.
What do we have? The income tax, women’s suffrage (which the 14th really should have taken care of), maybe you count direct election of senators, and maybe I missed one.
And of course the business of requiring three quarters of the states to ratify means that any significant opposition will derail an amendment. Realistically, it would probably require something like 85-95% approval.
That is not an avenue for political change.
So we now go to SCOTUS for what should be active political questions to “amend” the Constitution. And I don’t think that is healthy.
Healthy or not, it is really the only option.
The amendment process simply does not work. We have had twenty-seven. Ten were really not amendments at all, and three required a civil war. Two cancel each other out, and most of the rest are procedural.
What do we have? The income tax, women’s suffrage (which the 14th really should have taken care of), maybe you count direct election of senators, and maybe I missed one.
And of course the business of requiring three quarters of the states to ratify means that any significant opposition will derail an amendment. Realistically, it would probably require something like 85-95% approval.
That is not an avenue for political change.
Analysis such as “she won more votes” is why she LOST.
are you drunk?
Clinton won the primary and she won the general election.
Trump is the President only because the purposely-anti-democratic Electoral College (not the DNC) put him there.
Analysis such as “she won more votes” is why she LOST.
are you drunk?
Clinton won the primary and she won the general election.
Trump is the President only because the purposely-anti-democratic Electoral College (not the DNC) put him there.
TP: Even the Seekers After Fixed Rules probably agree that “popular opinion” had something to do with adoption of the Constitution from which the very existence of a SCOTUS flows.
If you’re at all interested, Akhil Amar’s “America’s Constitution, a Biography” has a detailed description of the ratification process. Especially interesting to me was the description of differing rules about suffrage in the various states. Some were tighter, some were more inclusive.
TP: Even the Seekers After Fixed Rules probably agree that “popular opinion” had something to do with adoption of the Constitution from which the very existence of a SCOTUS flows.
If you’re at all interested, Akhil Amar’s “America’s Constitution, a Biography” has a detailed description of the ratification process. Especially interesting to me was the description of differing rules about suffrage in the various states. Some were tighter, some were more inclusive.
This opinion is a black hole of stupid so dense that it threatens to suck all rationality out of the solar system.
I am so going to steal this……
This opinion is a black hole of stupid so dense that it threatens to suck all rationality out of the solar system.
I am so going to steal this……
Tony:
It was a half-in-jest comment, (yes, some part truth-in-jest). Or maybe only 1/4 in jest, I can’t tell. So my opinion is only, let us say, a neutron star of stupid. And I wasn’t being precise and I was exaggerating for effect. And look where that got me. Sorry.
And if recall correctly, HRC blamed herself for Trump (after blaming everyone else backfired). So her opinion is in my opinion’s quadrant of stupid now? Noooooooooo!
I deal with causation all the time in my practice and I get the ebb and flow of what causes and does not cause an event. It can be very complex. So I’m deliberately not trying to be precise, because I can’t.
I mean, really, HRC was just a terrible, terrible candidate, IMHO. No, I’m not saying anything about Trump at this point. In isolation, she was not a good choice.
So being serious now, I do think that the candidate chosen by the D’s had more than a little impact on the election of Trump. In lawyer speak, she was at least a significant contributory factor if not a substantial factor in Trump’s election. And I do not think that opinion is anywhere near stupid.
And I reserve the right to change my opinion. I wouldn’t be here (lurking most of the time) if I didn’t feel that way.
Tony:
It was a half-in-jest comment, (yes, some part truth-in-jest). Or maybe only 1/4 in jest, I can’t tell. So my opinion is only, let us say, a neutron star of stupid. And I wasn’t being precise and I was exaggerating for effect. And look where that got me. Sorry.
And if recall correctly, HRC blamed herself for Trump (after blaming everyone else backfired). So her opinion is in my opinion’s quadrant of stupid now? Noooooooooo!
I deal with causation all the time in my practice and I get the ebb and flow of what causes and does not cause an event. It can be very complex. So I’m deliberately not trying to be precise, because I can’t.
I mean, really, HRC was just a terrible, terrible candidate, IMHO. No, I’m not saying anything about Trump at this point. In isolation, she was not a good choice.
So being serious now, I do think that the candidate chosen by the D’s had more than a little impact on the election of Trump. In lawyer speak, she was at least a significant contributory factor if not a substantial factor in Trump’s election. And I do not think that opinion is anywhere near stupid.
And I reserve the right to change my opinion. I wouldn’t be here (lurking most of the time) if I didn’t feel that way.
I’m going to try to Steelman your argument, take the strongest case I can think of and then compare it to Roe. I think the strongest case is Loving v. Virginia. There you could say that the Supreme Court got ahead of the country’s comfort level with racial intermarriage by a strong degree. They got ahead of the state level treatment (another factor often cited by living constitutionalists) by a much lesser degree but still noticeable. At the time of the ruling, if my counting is correct, 33 states allowed interracial marriage. Further evidence that the Supreme Court was ahead of the nation (but in a direction that it was going) is found in the fact that in the years just before the ruling, about 13 states repealed their laws forbidding inter-racial marriage. Better still for your case, approval of interracial marriage has improved consistently and dramatically since then (see the graph I linked above).
Seb, I note that you do compare the changes in public opinion after the ruling. But I see nothing recognizing that, as with Loving, in the years before Roe there had been steady progress in legalizing abortion around the country. You can argue that the change hadn’t gotten as far as on interracial marriage. But you ought to at least recognize that the same kind of change of attitude was in progress.
I’m going to try to Steelman your argument, take the strongest case I can think of and then compare it to Roe. I think the strongest case is Loving v. Virginia. There you could say that the Supreme Court got ahead of the country’s comfort level with racial intermarriage by a strong degree. They got ahead of the state level treatment (another factor often cited by living constitutionalists) by a much lesser degree but still noticeable. At the time of the ruling, if my counting is correct, 33 states allowed interracial marriage. Further evidence that the Supreme Court was ahead of the nation (but in a direction that it was going) is found in the fact that in the years just before the ruling, about 13 states repealed their laws forbidding inter-racial marriage. Better still for your case, approval of interracial marriage has improved consistently and dramatically since then (see the graph I linked above).
Seb, I note that you do compare the changes in public opinion after the ruling. But I see nothing recognizing that, as with Loving, in the years before Roe there had been steady progress in legalizing abortion around the country. You can argue that the change hadn’t gotten as far as on interracial marriage. But you ought to at least recognize that the same kind of change of attitude was in progress.
I mean, really, HRC was just a terrible, terrible candidate,
that she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received, and is second only to Obama among votes for Democratic candidates notwithstanding, of course.
I mean, really, HRC was just a terrible, terrible candidate,
that she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received, and is second only to Obama among votes for Democratic candidates notwithstanding, of course.
Rosenstein, Federalist Society Republican, also soon to be assassinated by mp/Putin/Republican Party agents, indicts 12 Russians for hacking DNC emails.
Today, July 13, 2018.
https://www.nbcnews.com/politics/donald-trump/mueller-asking-what-trump-knew-about-hacked-emails-n851941
How did mp know the Russians did the hacking and how did he know they were in a position to find them when he publicly requested they do so in 2016, prior to the stolen election in November of 2016, which marks the date of America’s entry into the list of lawless, failed states in the world soon to be consumed by savage retributional tribal violence, and prior to the commencement of a formal investigation.
Remember Guiliani’s “pretty big surprise”?
Guiliani will be executed as a traitor by those lawfully assigned by popular opinion to do so and his bloated corpse left tethered and floating face down in the Washington D.C. tidal basin so that the thousands of Russian and mp sailors participating in joint Russian/mpian Naval exercises and warplane flyovers over the Chesapeake Bay and Washington D.C. on July 4, 2019 can view what is going to happen to all of them.
Meanwhile, the wives, mistresses, girlfriends, daughters, and underaged boy toys of the Republican cucks on the House Judiciary Committee will be assigned to service Russian and American troops alike on R&R during the exercises.
Hillary must have deep-state arranged all of this while she was dying of pneumonia and several other terminal diseases, may she rest in peace, in the Fall of 2016, as reported here directly to us by The Americans TV show cast members and script writers among us.
Rosenstein, Federalist Society Republican, also soon to be assassinated by mp/Putin/Republican Party agents, indicts 12 Russians for hacking DNC emails.
Today, July 13, 2018.
https://www.nbcnews.com/politics/donald-trump/mueller-asking-what-trump-knew-about-hacked-emails-n851941
How did mp know the Russians did the hacking and how did he know they were in a position to find them when he publicly requested they do so in 2016, prior to the stolen election in November of 2016, which marks the date of America’s entry into the list of lawless, failed states in the world soon to be consumed by savage retributional tribal violence, and prior to the commencement of a formal investigation.
Remember Guiliani’s “pretty big surprise”?
Guiliani will be executed as a traitor by those lawfully assigned by popular opinion to do so and his bloated corpse left tethered and floating face down in the Washington D.C. tidal basin so that the thousands of Russian and mp sailors participating in joint Russian/mpian Naval exercises and warplane flyovers over the Chesapeake Bay and Washington D.C. on July 4, 2019 can view what is going to happen to all of them.
Meanwhile, the wives, mistresses, girlfriends, daughters, and underaged boy toys of the Republican cucks on the House Judiciary Committee will be assigned to service Russian and American troops alike on R&R during the exercises.
Hillary must have deep-state arranged all of this while she was dying of pneumonia and several other terminal diseases, may she rest in peace, in the Fall of 2016, as reported here directly to us by The Americans TV show cast members and script writers among us.
she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received, and is second only to Obama among votes for Democratic candidates notwithstanding, of course.
Being a good candidate includes not only getting more votes overall, but campaigning and winning in the places required to win the election. In short, a good candidate needs to focus on the places that will lead to victory.
A Democrat who wants to win doesn’t bother to go to (or run lots of ads in) Massachusetts or California or DC. She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so.
she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received, and is second only to Obama among votes for Democratic candidates notwithstanding, of course.
Being a good candidate includes not only getting more votes overall, but campaigning and winning in the places required to win the election. In short, a good candidate needs to focus on the places that will lead to victory.
A Democrat who wants to win doesn’t bother to go to (or run lots of ads in) Massachusetts or California or DC. She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so.
She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so.
this is somewhat opposed to reality.
as someone who lives in one of those swing states, let me assure you: she was here all the damned time. she was here in NC, her husband was here, the Obamas were here on her behalf, as was Sanders, Kaine, and every other big name Dem you can think of. multiple times. constantly. she even made the last stop of her campaign here, at midnight, with Lady Gaga and Bon Jovi, the night before election day.
She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so.
this is somewhat opposed to reality.
as someone who lives in one of those swing states, let me assure you: she was here all the damned time. she was here in NC, her husband was here, the Obamas were here on her behalf, as was Sanders, Kaine, and every other big name Dem you can think of. multiple times. constantly. she even made the last stop of her campaign here, at midnight, with Lady Gaga and Bon Jovi, the night before election day.
Well, there are terrible, terrible candidates, granted.
Still no reason to elect a dumpster full of dogshit.
Hindenberg was not exactly a wonderful candidate in 1932, but he won, for a few months.
He didn’t make much of a blimp either.
mp, on the other hand, looks good as a blimp.
He’ll look better like this:
https://www.youtube.com/watch?v=dPOyUB9ZE2Q
It won’t be an accident.
Well, there are terrible, terrible candidates, granted.
Still no reason to elect a dumpster full of dogshit.
Hindenberg was not exactly a wonderful candidate in 1932, but he won, for a few months.
He didn’t make much of a blimp either.
mp, on the other hand, looks good as a blimp.
He’ll look better like this:
https://www.youtube.com/watch?v=dPOyUB9ZE2Q
It won’t be an accident.
Re: Posted by: Countme-a-Demon | July 13, 2018 at 12:58 PM
Robert Mueller is a pro. His methodical, disciplined, muted approach stands in such contrast to Trump’s. I can’t help but think of this line from M. Night Shyamalan’s Unbreakable (though it’s kind of the other way around):
I think he’s closing in, slowly but surely, and when he’s done, his case will be wrapped up so tightly and comprehensively that it will take a reverse-coup of sorts to deny it.
Go Deep State!
Re: Posted by: Countme-a-Demon | July 13, 2018 at 12:58 PM
Robert Mueller is a pro. His methodical, disciplined, muted approach stands in such contrast to Trump’s. I can’t help but think of this line from M. Night Shyamalan’s Unbreakable (though it’s kind of the other way around):
I think he’s closing in, slowly but surely, and when he’s done, his case will be wrapped up so tightly and comprehensively that it will take a reverse-coup of sorts to deny it.
Go Deep State!
it will take a reverse-coup of sorts to deny it.
the GOP is up to the challenge
it will take a reverse-coup of sorts to deny it.
the GOP is up to the challenge
bc,
If our litigious society survives the depredations of Putin’s Little Bitch, we may well end up seeing an actual courtroom trial over who was actually responsible for the grotesque accident that was He, Trump’s tantrum of a presidency. You can be on the Dream Team arguing for the proposition that it was the DNC who had the last clear chance to avoid the accident. I’ll bring the popcorn.
If He, Trump’s Little Toady has made it on to Mitch McConnell’s SCOTUS by then, I like your chances of getting cert and winning on appeal.
–TP
bc,
If our litigious society survives the depredations of Putin’s Little Bitch, we may well end up seeing an actual courtroom trial over who was actually responsible for the grotesque accident that was He, Trump’s tantrum of a presidency. You can be on the Dream Team arguing for the proposition that it was the DNC who had the last clear chance to avoid the accident. I’ll bring the popcorn.
If He, Trump’s Little Toady has made it on to Mitch McConnell’s SCOTUS by then, I like your chances of getting cert and winning on appeal.
–TP
she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received
Electoral College. 306-232. Not that great, but better than JFK.
Listen, I don’t think statistics are their normal selves for THIS election. I am sure the numbers gods for the HRC campaign agree. If one of them had been “normal”, we would have something.
But too many focus on those that voted for Trump. What about the Never Trumpers? What about those that refused to vote for Trump? No doubt many people voted for HRC simply due to Trump.
So, no, the popular vote didn’t make her a good candidate. ANY decent Democrat would have taken many votes away from Trump, and, IMHO, many more than HRC. I think Trump had a huge handicap due to his personality. It was a huge turnoff for many people. But in spite of that he handily (but not overwhelmingly) took the election. To me, it was in fact a landslide simply because he shouldn’t have won. And that reflects poorly on HRC.
It was hers to lose. And lose it she did.
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
A bad candidate of epic proportions.
she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received
Electoral College. 306-232. Not that great, but better than JFK.
Listen, I don’t think statistics are their normal selves for THIS election. I am sure the numbers gods for the HRC campaign agree. If one of them had been “normal”, we would have something.
But too many focus on those that voted for Trump. What about the Never Trumpers? What about those that refused to vote for Trump? No doubt many people voted for HRC simply due to Trump.
So, no, the popular vote didn’t make her a good candidate. ANY decent Democrat would have taken many votes away from Trump, and, IMHO, many more than HRC. I think Trump had a huge handicap due to his personality. It was a huge turnoff for many people. But in spite of that he handily (but not overwhelmingly) took the election. To me, it was in fact a landslide simply because he shouldn’t have won. And that reflects poorly on HRC.
It was hers to lose. And lose it she did.
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
A bad candidate of epic proportions.
mp and Putin will discuss the 12 indictments and like two sociopaths in a pod, will decide to pardon six of them and poison the other six.
Putin, Kim Jung un, and many of the other brutal killers in the world have no agreements with the U.S. Government, via normal channels, yet another norm gone.
They have personal, private arrangements with mp.
Nothing had been written down or recorded, as per the mp/Kim Jong un kissing booth. There are no files at the State Department regarding these arrangements.
They are more along the arrangements Sam Giancana had with the CIA.
If, and it’s a big if, Democrats should win control of the Executive Branch without mass killings by the conservative movement against us, there will be no passing on of institutional diplomatic memory of these “arrangements”.
mp will forbid it. Those arrangements will never see the light of day, like his tax returns. Pompeo will not even meet with a new, incoming Secretary of State.
Putin, Kim Jong un and the other foreign conservatives will refuse engagement with any Democratic elected President or government. They will tell us they can only negotiate via mp and his band of fascist c*nts.
As Tony P. has pointed put, and I have as well, if there is any sort of electoral threat to mp and the republican party from democratic candidates, terrible, terrible ones or not, Russia and North Korea and Israel, and Saudi Arabia and other mp allies will commence military provocations and let the American people know that should anyone other than mp, until he is dead, or a republican of their choice assume elected control of the U.S. Government and foreign policy, there will be war and retribution against American liberal and Democratic governments.
The mp/republican base will eat it up. A plurality of undecideds will acquiesce out of sheer fear generated by the propaganda.
In 1954, Joe McCarthy pledged to exterminate the “queers and Commies” in the State Department, and these slurs have been held over the heads of every Democrat, liberal and moderate (the racist f*cks among democrats became republicans) in America ever since.
The tables are turning.
Every Republican in America, down to the last suspect man and woman, under all of our beds, are now the “queers and Commies” McCarthy targeted.
We know who you work for.
Putin hates Social Security and Medicare as much as every animal in the Federalist Society.
McKinney asked some days ago how we got here that immigrants and others being targeted in the mp’s inimitable style are now viewed by us as tantamount to the Nazi lead-up to Bergen-Belsen.
mp’ former wife, the physically abused one, swears that mp kept a copy of Adolph Hitler’s “My New Order”, a collection of the Fuhrer’s speeches on his bedside table.
The only doubt I harbor about that is that the first volume alone of those speeches is 600 or so pages long and includes no simple line drawings, so it’s hard to imagine mp poring over it, considering that his fortune cookie fortunes are edited down by his staff to “You Are Great”, but still I think we are justified in suspecting the f*ck is at least Nazi-curious.
Unlike Hillary’s and Barack’s volume of Alinsky’s “Rules For Radicals”, which they didn’t keep on their bedside tables, or even in their rooms, Hitler’s words counsel murder, not community organizing.
mp and Putin will discuss the 12 indictments and like two sociopaths in a pod, will decide to pardon six of them and poison the other six.
Putin, Kim Jung un, and many of the other brutal killers in the world have no agreements with the U.S. Government, via normal channels, yet another norm gone.
They have personal, private arrangements with mp.
Nothing had been written down or recorded, as per the mp/Kim Jong un kissing booth. There are no files at the State Department regarding these arrangements.
They are more along the arrangements Sam Giancana had with the CIA.
If, and it’s a big if, Democrats should win control of the Executive Branch without mass killings by the conservative movement against us, there will be no passing on of institutional diplomatic memory of these “arrangements”.
mp will forbid it. Those arrangements will never see the light of day, like his tax returns. Pompeo will not even meet with a new, incoming Secretary of State.
Putin, Kim Jong un and the other foreign conservatives will refuse engagement with any Democratic elected President or government. They will tell us they can only negotiate via mp and his band of fascist c*nts.
As Tony P. has pointed put, and I have as well, if there is any sort of electoral threat to mp and the republican party from democratic candidates, terrible, terrible ones or not, Russia and North Korea and Israel, and Saudi Arabia and other mp allies will commence military provocations and let the American people know that should anyone other than mp, until he is dead, or a republican of their choice assume elected control of the U.S. Government and foreign policy, there will be war and retribution against American liberal and Democratic governments.
The mp/republican base will eat it up. A plurality of undecideds will acquiesce out of sheer fear generated by the propaganda.
In 1954, Joe McCarthy pledged to exterminate the “queers and Commies” in the State Department, and these slurs have been held over the heads of every Democrat, liberal and moderate (the racist f*cks among democrats became republicans) in America ever since.
The tables are turning.
Every Republican in America, down to the last suspect man and woman, under all of our beds, are now the “queers and Commies” McCarthy targeted.
We know who you work for.
Putin hates Social Security and Medicare as much as every animal in the Federalist Society.
McKinney asked some days ago how we got here that immigrants and others being targeted in the mp’s inimitable style are now viewed by us as tantamount to the Nazi lead-up to Bergen-Belsen.
mp’ former wife, the physically abused one, swears that mp kept a copy of Adolph Hitler’s “My New Order”, a collection of the Fuhrer’s speeches on his bedside table.
The only doubt I harbor about that is that the first volume alone of those speeches is 600 or so pages long and includes no simple line drawings, so it’s hard to imagine mp poring over it, considering that his fortune cookie fortunes are edited down by his staff to “You Are Great”, but still I think we are justified in suspecting the f*ck is at least Nazi-curious.
Unlike Hillary’s and Barack’s volume of Alinsky’s “Rules For Radicals”, which they didn’t keep on their bedside tables, or even in their rooms, Hitler’s words counsel murder, not community organizing.
TP:
You win the thread on style. Touche.
TP:
You win the thread on style. Touche.
But too many focus on those that voted for Trump. What about the Never Trumpers? What about those that refused to vote for Trump? No doubt many people voted for HRC simply due to Trump.
impossible. a candidate that bad could never attract votes.
But too many focus on those that voted for Trump. What about the Never Trumpers? What about those that refused to vote for Trump? No doubt many people voted for HRC simply due to Trump.
impossible. a candidate that bad could never attract votes.
bc: It was hers to lose. And lose it she did.
Despite getting your vote, bc?
I kid, I kid. But I’m curious which Dem you could have brought yourself to vote for in 2016 once the MAGA crowd nominated He, Trump.
–TP
bc: It was hers to lose. And lose it she did.
Despite getting your vote, bc?
I kid, I kid. But I’m curious which Dem you could have brought yourself to vote for in 2016 once the MAGA crowd nominated He, Trump.
–TP
More, as we’ve known here for months and months:
https://talkingpointsmemo.com/muckraker/congressional-candidate-received-stolen-documents-russia-2016
Paul Ryan used Russian-and Eastern European-originated anti-Clinton themes, nearly word-for-word, in his political campaign advertising in 2016.
As did many, if not all, right-wing broadcasters.
The Russian government was then and now controls a good third of the pipes on the Republican/conservative Wurlitzer.
“No doubt many people voted for HRC simply due to Trump.”
Then those terrible, terrible voters don’t know terrible, terrible from outright murderous Evil.
More, as we’ve known here for months and months:
https://talkingpointsmemo.com/muckraker/congressional-candidate-received-stolen-documents-russia-2016
Paul Ryan used Russian-and Eastern European-originated anti-Clinton themes, nearly word-for-word, in his political campaign advertising in 2016.
As did many, if not all, right-wing broadcasters.
The Russian government was then and now controls a good third of the pipes on the Republican/conservative Wurlitzer.
“No doubt many people voted for HRC simply due to Trump.”
Then those terrible, terrible voters don’t know terrible, terrible from outright murderous Evil.
“But I see nothing recognizing that, as with Loving, in the years before Roe there had been steady progress in legalizing abortion around the country.”
“legalizing abortion” is accidentally obscuring too much there. Making it so that the laws on abortion conformed with the general moral intuition that it was ok in the earliest months? Definitely. 5th or 6th month? Not so much. The Court ended up drawing the line much earlier than the country as a whole wanted/wants, and early enough that nearly all of the states had their laws invalidated, including most of those you are wanting to count.
“But I see nothing recognizing that, as with Loving, in the years before Roe there had been steady progress in legalizing abortion around the country.”
“legalizing abortion” is accidentally obscuring too much there. Making it so that the laws on abortion conformed with the general moral intuition that it was ok in the earliest months? Definitely. 5th or 6th month? Not so much. The Court ended up drawing the line much earlier than the country as a whole wanted/wants, and early enough that nearly all of the states had their laws invalidated, including most of those you are wanting to count.
“I don’t feel that the SoC has a requirement of getting out ahead of public opinion, but there have been times in our history where the SoC has had to be the agent of change.”
I agree with you on that. On a practical level it is probably just as well that they did in those cases. But is it possible that they overlearned that lesson? That once they saw their power in the more emergency situations, they started applying it in situations where they did not have to be the agent of change?
“I don’t feel that the SoC has a requirement of getting out ahead of public opinion, but there have been times in our history where the SoC has had to be the agent of change.”
I agree with you on that. On a practical level it is probably just as well that they did in those cases. But is it possible that they overlearned that lesson? That once they saw their power in the more emergency situations, they started applying it in situations where they did not have to be the agent of change?
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
How about if you ignore Texas, or Arkansas, for that matter?
It never ceases to amaze me how GOP’ers somehow don’t think Californians count the same as everyone else. Why ignore California? Roughly one out of every eight people in the US lives there, but somehow it doesn’t matter.
You know what, if we ignore AL, MS, GA, SC, LA, AK, and TN Trump lost the rest of the country. THE REST OF THE COUNTRY!!
Those states combined have roughly the same population as CA, and are considerably less diverse. So the argument doesn’t impress.
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
How about if you ignore Texas, or Arkansas, for that matter?
It never ceases to amaze me how GOP’ers somehow don’t think Californians count the same as everyone else. Why ignore California? Roughly one out of every eight people in the US lives there, but somehow it doesn’t matter.
You know what, if we ignore AL, MS, GA, SC, LA, AK, and TN Trump lost the rest of the country. THE REST OF THE COUNTRY!!
Those states combined have roughly the same population as CA, and are considerably less diverse. So the argument doesn’t impress.
Paul Ryan used Russian-and Eastern European-originated anti-Clinton themes, nearly word-for-word, in his political campaign advertising in 2016.
As did many, if not all, right-wing broadcasters.
The Russian government was then and now controls a good third of the pipes on the Republican/conservative Wurlitzer.
Count, I think you may have been missing an opportunity. What do you figure Putin has on Rupert Murdoch? (Why should Trump be the only target of opportunity?) Something that would account for the damage Fox News and the Sun have done to American and the UK. Just thinking you could do something with that.
Paul Ryan used Russian-and Eastern European-originated anti-Clinton themes, nearly word-for-word, in his political campaign advertising in 2016.
As did many, if not all, right-wing broadcasters.
The Russian government was then and now controls a good third of the pipes on the Republican/conservative Wurlitzer.
Count, I think you may have been missing an opportunity. What do you figure Putin has on Rupert Murdoch? (Why should Trump be the only target of opportunity?) Something that would account for the damage Fox News and the Sun have done to American and the UK. Just thinking you could do something with that.
More from my particular go-to legal authority. The links are particularly good.
Especially germaine to our little discussion is this point by Matty Y:
“But where a progressive judge might see judicial intervention as primarily warranted in order to protect the powerless against assaults from the powerful, Kavanaugh and the conservative legal mainstream see it as a tool to protect business owners from majority rule. If one is a sufficiently unprincipled liar — which Brett Kavanaugh certainly is, as we saw in his remarks after Trump introduced him to the nation — one can dress this up in the language of democracy or originalism or whatever else.
But in truth, the clash of constitutional visions represents not a disagreement about originalism or novelty, but an ongoing disagreement that dates back to the founding of the Republic.
Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?”
More from my particular go-to legal authority. The links are particularly good.
Especially germaine to our little discussion is this point by Matty Y:
“But where a progressive judge might see judicial intervention as primarily warranted in order to protect the powerless against assaults from the powerful, Kavanaugh and the conservative legal mainstream see it as a tool to protect business owners from majority rule. If one is a sufficiently unprincipled liar — which Brett Kavanaugh certainly is, as we saw in his remarks after Trump introduced him to the nation — one can dress this up in the language of democracy or originalism or whatever else.
But in truth, the clash of constitutional visions represents not a disagreement about originalism or novelty, but an ongoing disagreement that dates back to the founding of the Republic.
Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?”
No disagreement here, wj, but as a point of interest the Daily Mail has probably done more damage to the UK than the Sun (except in the general area of coarsening the culture), and has a different proprietor. But as far as Fox is concerned I think it is impossible to overstate the damage it’s done to America.
No disagreement here, wj, but as a point of interest the Daily Mail has probably done more damage to the UK than the Sun (except in the general area of coarsening the culture), and has a different proprietor. But as far as Fox is concerned I think it is impossible to overstate the damage it’s done to America.
looks like i am feeling a bit particular today. swap out the first one and replace with “favorite”.
Thank you. Do carry on.
looks like i am feeling a bit particular today. swap out the first one and replace with “favorite”.
Thank you. Do carry on.
That once they saw their power in the more emergency situations, they started applying it in situations where they did not have to be the agent of change?
“emergency” is doing too much there. Was Brown v. Board an “emergency” situation? Loving? Griswold?
Plessy had been the law of the land for more than half a century. It became an emergency in the mid 50s?
The Court should step in when there is manifest injustice. That’s what it did in Brown and Loving. Obergefell as well. It might be less clear in Griswold and Roe, but I’d argue that’s what is was doing in those cases as well.
But, quite frankly, we will soon have a majority sitting on the Supreme Court that would have voted the “wrong” way on Brown, Loving, and certainly Obergefell, had they been justices at the time.
In my mind the Constitutional argument in favor of those three decisions is overwhelming. You cannot apply the 5th and 14th amendments in good faith while deciding that the races can be separated in public or private by deliberate governmental policy, or that the government can grant benefits (and impose obligations) to those entering into a marriage contract only if they are of the opposite sex.
Or at least I thought so…
That once they saw their power in the more emergency situations, they started applying it in situations where they did not have to be the agent of change?
“emergency” is doing too much there. Was Brown v. Board an “emergency” situation? Loving? Griswold?
Plessy had been the law of the land for more than half a century. It became an emergency in the mid 50s?
The Court should step in when there is manifest injustice. That’s what it did in Brown and Loving. Obergefell as well. It might be less clear in Griswold and Roe, but I’d argue that’s what is was doing in those cases as well.
But, quite frankly, we will soon have a majority sitting on the Supreme Court that would have voted the “wrong” way on Brown, Loving, and certainly Obergefell, had they been justices at the time.
In my mind the Constitutional argument in favor of those three decisions is overwhelming. You cannot apply the 5th and 14th amendments in good faith while deciding that the races can be separated in public or private by deliberate governmental policy, or that the government can grant benefits (and impose obligations) to those entering into a marriage contract only if they are of the opposite sex.
Or at least I thought so…
And as I said in the post, Gorsuch, Alito and Kavanaugh will be a 3 vote, 20 year block for the worst troglodyte POS SCOTUS jurisprudence you can imagine (or is it the best?). Thomas is there too except for the 10% of the time he goes nuts in either the right or left direction.
That Roberts is now the “reasonable” one is insane, though I guess he at least seems to have some empathy.
It’s poorly argued “originalism” all the way down…
And as I said in the post, Gorsuch, Alito and Kavanaugh will be a 3 vote, 20 year block for the worst troglodyte POS SCOTUS jurisprudence you can imagine (or is it the best?). Thomas is there too except for the 10% of the time he goes nuts in either the right or left direction.
That Roberts is now the “reasonable” one is insane, though I guess he at least seems to have some empathy.
It’s poorly argued “originalism” all the way down…
Since I’m ranting, what is the advantage of the Roberts, Thomas, Alito, Gorsuch, Fnckwad approach to SCOTUSing over Ginsburg, Breyer, Kagan, and Sotomayor’s approach? Is it just fear of governance by judicial fiat?
Has that ever occurred in any nation on Earth, ever? Are we worried that, should the “liberal” SCOTUS wing decide, e.g., that campaign finance limitations are just fine and dandy then the Republic will end? That if the Federal Government can demand people purchase health insurance the next step will be…well, what?
I mean, W.T.F.?
Since I’m ranting, what is the advantage of the Roberts, Thomas, Alito, Gorsuch, Fnckwad approach to SCOTUSing over Ginsburg, Breyer, Kagan, and Sotomayor’s approach? Is it just fear of governance by judicial fiat?
Has that ever occurred in any nation on Earth, ever? Are we worried that, should the “liberal” SCOTUS wing decide, e.g., that campaign finance limitations are just fine and dandy then the Republic will end? That if the Federal Government can demand people purchase health insurance the next step will be…well, what?
I mean, W.T.F.?
And all the while we get to be treated to this “originalism” BS propaganda campaign, as if it it/was perfectly clear what the “drafters” of the Constitution/amendment were saying in their ~38 words when it comes to operating public schools in Des Moines.
I mean “living constitutionalists” are morons because they have no guiding principles, whereas as “originalists” are “rooted in the text” and oh by the way we get to consult extra-textual sources as authority when we feel like it because.
tl;dr – read the title to the post…….
And all the while we get to be treated to this “originalism” BS propaganda campaign, as if it it/was perfectly clear what the “drafters” of the Constitution/amendment were saying in their ~38 words when it comes to operating public schools in Des Moines.
I mean “living constitutionalists” are morons because they have no guiding principles, whereas as “originalists” are “rooted in the text” and oh by the way we get to consult extra-textual sources as authority when we feel like it because.
tl;dr – read the title to the post…….
I mean, WTF is Alito’s guiding principle in his jurisprudence? Fnck the little guy? You can claim all you want you are just following the law and Constitution, but, damn, if your decisions lead to the worst kind of governing, BS, tyrannical crap….? Yay?
My kingdom for a Thurgood Marshall on this effing Court.
I mean, WTF is Alito’s guiding principle in his jurisprudence? Fnck the little guy? You can claim all you want you are just following the law and Constitution, but, damn, if your decisions lead to the worst kind of governing, BS, tyrannical crap….? Yay?
My kingdom for a Thurgood Marshall on this effing Court.
To sum up, the worst effing current Supreme Court Justices:
1. Gorsuch
2. Alito
3. Thomas
4. Kavanugh (Back to the Future Award Winner)
5. Roberts
6. Breyer
7. Kagan
8. Ginsburg
9. Sotomayor
When I’m President I’m nominating Katherine and a bunch of hippies.
To sum up, the worst effing current Supreme Court Justices:
1. Gorsuch
2. Alito
3. Thomas
4. Kavanugh (Back to the Future Award Winner)
5. Roberts
6. Breyer
7. Kagan
8. Ginsburg
9. Sotomayor
When I’m President I’m nominating Katherine and a bunch of hippies.
hilzoy too
hilzoy too
Are we worried that, should the “liberal” SCOTUS wing decide, e.g., that campaign finance limitations are just fine and dandy then the Republic will end? That if the Federal Government can demand people purchase health insurance the next step will be…well, what?
I would say that the worries are:
– (invalidly) that the economy will suffer if there is regulation
– that “those people” will florish. Not just at the expense of Real Americans but at all.
– that the freedom to damage, not just oneself and one’s family, but “those people” will be abridged.
Are we worried that, should the “liberal” SCOTUS wing decide, e.g., that campaign finance limitations are just fine and dandy then the Republic will end? That if the Federal Government can demand people purchase health insurance the next step will be…well, what?
I would say that the worries are:
– (invalidly) that the economy will suffer if there is regulation
– that “those people” will florish. Not just at the expense of Real Americans but at all.
– that the freedom to damage, not just oneself and one’s family, but “those people” will be abridged.
Cheer up, Ugh. At least Gorsuch, Thomas, Alito, and Roberts never sank to the depth of toadyism exhibited by Kavanaugh. Of course, it may just be because they didn’t think of it.
–TP
Cheer up, Ugh. At least Gorsuch, Thomas, Alito, and Roberts never sank to the depth of toadyism exhibited by Kavanaugh. Of course, it may just be because they didn’t think of it.
–TP
I mean, WTF is Alito’s guiding principle in his jurisprudence?
The enhancement of the prerogatives of private power and property.
I mean, WTF is Alito’s guiding principle in his jurisprudence?
The enhancement of the prerogatives of private power and property.
Ugh, I think it’s a bit early to rate Gorsuch. And he will have to go some to beat out Alito or Thomas.
Curious why you think Alito is worse than Thomas. Not arguing, just curious.
Ugh, I think it’s a bit early to rate Gorsuch. And he will have to go some to beat out Alito or Thomas.
Curious why you think Alito is worse than Thomas. Not arguing, just curious.
Also, what Tony said. Although, to be fair, Thomas and Alito didn’t have Trump to play off of. Previous Presidents (even the ones I disliked) would have been disgusted by such behavior. Quite possibly to the point of withdrawing the nomination.
Also, what Tony said. Although, to be fair, Thomas and Alito didn’t have Trump to play off of. Previous Presidents (even the ones I disliked) would have been disgusted by such behavior. Quite possibly to the point of withdrawing the nomination.
She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so….
A suspicious mind might think that Mueller’s confirmation today that the Russians hacked the Democrat campaign’s data analytics might go some way towards explaining the relative efficiency of the Trump campaign in targeting swing states….
She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so….
A suspicious mind might think that Mueller’s confirmation today that the Russians hacked the Democrat campaign’s data analytics might go some way towards explaining the relative efficiency of the Trump campaign in targeting swing states….
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
In the 13-state West, Clinton won the EC vote 98-30 (ignoring the faithless electors that didn’t matter). In the 12-state NE urban corridor from Virginia to Maine, plus DC, Clinton won 104-21. In the other 25 states, Clinton lost 30-255. Myself, I believe this geographic divide is going to get worse before it gets better.
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
In the 13-state West, Clinton won the EC vote 98-30 (ignoring the faithless electors that didn’t matter). In the 12-state NE urban corridor from Virginia to Maine, plus DC, Clinton won 104-21. In the other 25 states, Clinton lost 30-255. Myself, I believe this geographic divide is going to get worse before it gets better.
Murdoch is a vaterlandsloser Gesell who makes money by demonizing people: In Britain his rags paint Germany as no different from the Third Reich (German chancellors get the toothbrush moustache on a regular base), in Germany he tried the same against Britain (with less success since he did not manage to outflank the BILD-Zeitung without running head-on into laws and regulations concerning libel incitement etc.)
Murdoch is a vaterlandsloser Gesell who makes money by demonizing people: In Britain his rags paint Germany as no different from the Third Reich (German chancellors get the toothbrush moustache on a regular base), in Germany he tried the same against Britain (with less success since he did not manage to outflank the BILD-Zeitung without running head-on into laws and regulations concerning libel incitement etc.)
Myself, I believe this geographic divide is going to get worse before it gets better.
Yes and no. I think it is also true that parts of the geographic divide are going to shift. That NE urban corridor is creeping south, to North Carolina and Georgia. And it won’t be surprising if Texas finds itself (perhaps to its surprise) part of the West. That is, turning blue.
Myself, I believe this geographic divide is going to get worse before it gets better.
Yes and no. I think it is also true that parts of the geographic divide are going to shift. That NE urban corridor is creeping south, to North Carolina and Georgia. And it won’t be surprising if Texas finds itself (perhaps to its surprise) part of the West. That is, turning blue.
Drum on Sullivan on Brexit .. and mp:
https://www.motherjones.com/kevin-drum/2018/07/how-about-a-mulligan-on-brexit/
Drum writes “the answer in both cases is an election”.
ONE answer maybe, and when it comes to the Court, that’s no longer an answer for the remainder of my life.
Been meaning to game out Sebastian’s musings on court packing:
Trump nears the end of the first term with a 7-2 right wing majority on the Court, two more liberal justices having died mysteriously. Either before treason brings him down before 2020, or if treason actually puts him over the top by popular demand for a second term among his treasonous, anti-American base and the firing of Mueller, he and McConnell and the Slavery Caucus will pack the Court with two additional hard-right justices immediately after Inauguration in 2021.
When republican treason is brought before the Court, by a 9-2 margin, in perpetuity, republican treason will be found to be constitutional and lawful on First Amendment grounds to protect the feelings of Russian Orthodox religious conservatives.
And while I’m at it, the matter of pre-existing medical conditions will also be decided on First Amendment grounds in favor of removing all insurance protections for those suffering from pre-existing medical conditions.
Ah, why not, bullets, military weaponry, and fetuses will enjoy equal protection under the Constitution, because they are people.
Your one-day old born baby .. not so much, under Founder Father Carlin’s textual musings that “once you are born, you are fucked.”
And probably shot too.
My kid, now a man, healthy and successful as he is, has a pre-existing medical condition, no details, knock on wood, so it’s a good thing about the bullets and the military weaponry, because if he suffers in any way I will use the free political expression of bullets and military weaponry to the full extent of their automatic loquacious, fast-talking personhood.
I kid you not.
Just laying down markers in this …. game.
Drum on Sullivan on Brexit .. and mp:
https://www.motherjones.com/kevin-drum/2018/07/how-about-a-mulligan-on-brexit/
Drum writes “the answer in both cases is an election”.
ONE answer maybe, and when it comes to the Court, that’s no longer an answer for the remainder of my life.
Been meaning to game out Sebastian’s musings on court packing:
Trump nears the end of the first term with a 7-2 right wing majority on the Court, two more liberal justices having died mysteriously. Either before treason brings him down before 2020, or if treason actually puts him over the top by popular demand for a second term among his treasonous, anti-American base and the firing of Mueller, he and McConnell and the Slavery Caucus will pack the Court with two additional hard-right justices immediately after Inauguration in 2021.
When republican treason is brought before the Court, by a 9-2 margin, in perpetuity, republican treason will be found to be constitutional and lawful on First Amendment grounds to protect the feelings of Russian Orthodox religious conservatives.
And while I’m at it, the matter of pre-existing medical conditions will also be decided on First Amendment grounds in favor of removing all insurance protections for those suffering from pre-existing medical conditions.
Ah, why not, bullets, military weaponry, and fetuses will enjoy equal protection under the Constitution, because they are people.
Your one-day old born baby .. not so much, under Founder Father Carlin’s textual musings that “once you are born, you are fucked.”
And probably shot too.
My kid, now a man, healthy and successful as he is, has a pre-existing medical condition, no details, knock on wood, so it’s a good thing about the bullets and the military weaponry, because if he suffers in any way I will use the free political expression of bullets and military weaponry to the full extent of their automatic loquacious, fast-talking personhood.
I kid you not.
Just laying down markers in this …. game.
Some part of the analysis of the history of SCOTUS rulings driving social/political/economic change has to include the fact that the court only gets to rule on the cases brought before it. They don’t just sit in a vacuum ruling on these issues as they see fit, righting whatever wrongs might exist.
Some part of the analysis of the history of SCOTUS rulings driving social/political/economic change has to include the fact that the court only gets to rule on the cases brought before it. They don’t just sit in a vacuum ruling on these issues as they see fit, righting whatever wrongs might exist.
Drum writes “the answer in both cases is an election”…
May already tried that, with a rather less than spectacular degree of success. A second referendum on Brexit is quite unlikely.
Drum writes “the answer in both cases is an election”…
May already tried that, with a rather less than spectacular degree of success. A second referendum on Brexit is quite unlikely.
They don’t just sit in a vacuum ruling on these issues as they see fit, righting whatever wrongs might exist.
Well they do get to choose which cases they want to take, so ‘only on the cases…brought before it’ isn’t quite right.
They don’t just sit in a vacuum ruling on these issues as they see fit, righting whatever wrongs might exist.
Well they do get to choose which cases they want to take, so ‘only on the cases…brought before it’ isn’t quite right.
bobbyp asks:
“Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?”
Rebekah Mercer games it out for us, in an actual game night, here:
https://www.newyorker.com/magazine/2018/07/02/a-parlor-game-at-rebekah-mercers-has-no-get-out-of-jail-free-card
Key takeaway:
The Mercers are building a global far-right movement to embed Judeo-Christian values” while “keeping government small, ineffective and out of the way.”
Those last words hers, and I highlight “ineffective”, because indeed government will be ineffective in keeping my hands from around her dead right-wing neck.
In other news, Papa John Wop (actually Schnatter, with an Aryan cost of arms) of Papa John’s Wopapizzerias has given up his ownership position of the company because he persists in calling Barack Obama and his father niggers, a well-known republican politically correct synonym for … nigger.
The Schnatters comprised most of the Nazi Schutzstaffel, some sent into Mussolini’s Italy to stiffen fascist spines, and of course steal pizza recipes and remove all of the flavor and charm from them to appeal to the tasteless deplorables in the American homeland, meine liebchen.
He is opening a new line of franchised pizzerias modeled on the Comet Ping Pong Pizzaria of conservative mpian imaginations. However, instead of giving over the basements of the establishments for Hillary Clinton theme nights, ICE will begin transferring the thousands of Central American children kidnapped from their parents into the basements where they will be chained to the walls and mp’s staff and republican apparatchiks can find safe harbor from condemnation over their sushi and fajitas and enjoy a cardboard-flavored pizza while spitting on, beating, and raping the kids, while subjecting them to a barrage of name calling including “rapists, criminals, and killers”
Rebekah Mercer, a whole pepperoni strapped to her fascist, crypto-religious crotch will ask the kids if they would care for anchovies with what she is serving.
A “global, right-wing movement” she thinks. As I’ve said, savage violence will be required in dozens of countries across the globe to stop her.
bobbyp asks:
“Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?”
Rebekah Mercer games it out for us, in an actual game night, here:
https://www.newyorker.com/magazine/2018/07/02/a-parlor-game-at-rebekah-mercers-has-no-get-out-of-jail-free-card
Key takeaway:
The Mercers are building a global far-right movement to embed Judeo-Christian values” while “keeping government small, ineffective and out of the way.”
Those last words hers, and I highlight “ineffective”, because indeed government will be ineffective in keeping my hands from around her dead right-wing neck.
In other news, Papa John Wop (actually Schnatter, with an Aryan cost of arms) of Papa John’s Wopapizzerias has given up his ownership position of the company because he persists in calling Barack Obama and his father niggers, a well-known republican politically correct synonym for … nigger.
The Schnatters comprised most of the Nazi Schutzstaffel, some sent into Mussolini’s Italy to stiffen fascist spines, and of course steal pizza recipes and remove all of the flavor and charm from them to appeal to the tasteless deplorables in the American homeland, meine liebchen.
He is opening a new line of franchised pizzerias modeled on the Comet Ping Pong Pizzaria of conservative mpian imaginations. However, instead of giving over the basements of the establishments for Hillary Clinton theme nights, ICE will begin transferring the thousands of Central American children kidnapped from their parents into the basements where they will be chained to the walls and mp’s staff and republican apparatchiks can find safe harbor from condemnation over their sushi and fajitas and enjoy a cardboard-flavored pizza while spitting on, beating, and raping the kids, while subjecting them to a barrage of name calling including “rapists, criminals, and killers”
Rebekah Mercer, a whole pepperoni strapped to her fascist, crypto-religious crotch will ask the kids if they would care for anchovies with what she is serving.
A “global, right-wing movement” she thinks. As I’ve said, savage violence will be required in dozens of countries across the globe to stop her.
This always happens when I write out something long, the time difference means that the reply is quite far away. Sebastian, I appreciate you replying and I understand that you aren’t asking the court to follow public opinion, so many of my concerns are answered. However, you are using public opinion as a guide of sorts to determine whether a decision was correct or not. You write:
Roe on the other hand has NOT seen a public shift anything like Loving. 45 years in, almost exactly the same percentage of people think that abortions should be sharply curtailed in the second trimester rather than the third–something which is not permitted by Roe. And that percentage is about 65-70%. Invoking the vagaries of public opinion isn’t appropriate in this case, because public opinion has been remarkably steady.
Has it been remarkably steady because public opinion is the ideal arbiter or because people have used it to create an issue? Especially among people who really have no standing to determine what is right and wrong? I understand that you may disagree with that, but it seems that you don’t even acknowledge the possibility. This is strange to me because we’ve all had a front row seat about the change in public opinion on homosexuality. You may say that this contrarily proves your point, but imo, one reason that public opinion on abortion hasn’t changed is that it is masked by privilege. The daughter of the upper class dentist with a boat is going to get her abortion if something happens, but if you are not in that group, you are out of luck.
As for the divide of textualist vs living constitutionalist, as I pointed out, Solan’s work goes through how judges use linguistics to provide support for their decisions in a way that is not ‘lets look at the linguistic questions before we decide’, but ‘lets see if there are any linguistic facts that I can use to ‘backfill’ my opinion’. I’ve been going thru Solan’s more recent work and he’s not at a loss for examples. So it seems to me that textualism is the same thing, but just adding the founders’ thoughts to the mix. Given how we as a country are able to recast history into almost any form we like (cf Martin Luther King and the Republicans), I really don’t think that the ground around textualism is as solid as you think it is.
This always happens when I write out something long, the time difference means that the reply is quite far away. Sebastian, I appreciate you replying and I understand that you aren’t asking the court to follow public opinion, so many of my concerns are answered. However, you are using public opinion as a guide of sorts to determine whether a decision was correct or not. You write:
Roe on the other hand has NOT seen a public shift anything like Loving. 45 years in, almost exactly the same percentage of people think that abortions should be sharply curtailed in the second trimester rather than the third–something which is not permitted by Roe. And that percentage is about 65-70%. Invoking the vagaries of public opinion isn’t appropriate in this case, because public opinion has been remarkably steady.
Has it been remarkably steady because public opinion is the ideal arbiter or because people have used it to create an issue? Especially among people who really have no standing to determine what is right and wrong? I understand that you may disagree with that, but it seems that you don’t even acknowledge the possibility. This is strange to me because we’ve all had a front row seat about the change in public opinion on homosexuality. You may say that this contrarily proves your point, but imo, one reason that public opinion on abortion hasn’t changed is that it is masked by privilege. The daughter of the upper class dentist with a boat is going to get her abortion if something happens, but if you are not in that group, you are out of luck.
As for the divide of textualist vs living constitutionalist, as I pointed out, Solan’s work goes through how judges use linguistics to provide support for their decisions in a way that is not ‘lets look at the linguistic questions before we decide’, but ‘lets see if there are any linguistic facts that I can use to ‘backfill’ my opinion’. I’ve been going thru Solan’s more recent work and he’s not at a loss for examples. So it seems to me that textualism is the same thing, but just adding the founders’ thoughts to the mix. Given how we as a country are able to recast history into almost any form we like (cf Martin Luther King and the Republicans), I really don’t think that the ground around textualism is as solid as you think it is.
And it won’t be surprising if Texas finds itself (perhaps to its surprise) part of the West. That is, turning blue.
For the numbers I look at, Texas is a fascinating case. El Paso is by all my usual measures a Western city — eg, west of the Great Plains, part of the Western Interconnect power grid, snow covered mountains from time to time, no agriculture at all sans irrigation, and blacks not the largest minority by a wide margin. El Paso is farther west geographically than Albuquerque or Denver. El Paso and the immediate area is already blue.
Houston and East Texas are Southern — Houston is 25.3% African-American (vs El Paso’s 3.5%), small-town settlement pattern, lots of Confederate memorials, wet, energy resources headed east not west. Houston’s pretty darned blue already, but not enough to overwhelm East Texas.
One of my talking points says that while Texas is nominally a member of the Western Governors Association, their actual interest in the policy matters the WGA acts on is nearly zero.
And it won’t be surprising if Texas finds itself (perhaps to its surprise) part of the West. That is, turning blue.
For the numbers I look at, Texas is a fascinating case. El Paso is by all my usual measures a Western city — eg, west of the Great Plains, part of the Western Interconnect power grid, snow covered mountains from time to time, no agriculture at all sans irrigation, and blacks not the largest minority by a wide margin. El Paso is farther west geographically than Albuquerque or Denver. El Paso and the immediate area is already blue.
Houston and East Texas are Southern — Houston is 25.3% African-American (vs El Paso’s 3.5%), small-town settlement pattern, lots of Confederate memorials, wet, energy resources headed east not west. Houston’s pretty darned blue already, but not enough to overwhelm East Texas.
One of my talking points says that while Texas is nominally a member of the Western Governors Association, their actual interest in the policy matters the WGA acts on is nearly zero.
https://talkingpointsmemo.com/livewire/house-conservatives-impeachment-rosenstein
Lock, load, and fire.
https://talkingpointsmemo.com/livewire/house-conservatives-impeachment-rosenstein
Lock, load, and fire.
https://www.esquire.com/news-politics/politics/a22143324/russia-indictments-robert-mueller-collusion-donald-trump/
As for those who like “some of the things” mp has done, when I drive on the Autobahn, I think, ya know, Ravensbruck and the rest was a bit of a misstep, but THIS, this highway, is nice.
https://www.esquire.com/news-politics/politics/a22143324/russia-indictments-robert-mueller-collusion-donald-trump/
As for those who like “some of the things” mp has done, when I drive on the Autobahn, I think, ya know, Ravensbruck and the rest was a bit of a misstep, but THIS, this highway, is nice.
Michael Cain – here are some questions prompted by your electoral college stats.
IIRC you have suggested (predicted?) that the US will split in two east/west sometime in the not all that distant future. (Sorry, too lazy and time-pressed to try to find the actual comment(s)).
In light of the ideological divisions represented in the electoral college breakdowns (West and NE corridor aligned), how/why do you see a division as occurring along a line that divides the territory into east and west, rather than (let’s say) something that leaves the southeast and southern middle in one piece, and keeps the west, the far north (e.g. MN), and the northeast together…? (Okay, as my Ohioan born and bred dad used to say, Ohio is the most southern state in the north, so maybe the swath would be hard to complete.)
Also IIRC, you’ve said (forgive the hasty paraphrase) that the rest of the country has no idea of and no particular sympathy with the concerns of the West. Is that the reason for your east/west theory? And if the West were to break off and become its own separate thing, what do you think are the chances that the rest of the country would also split, more along north/south lines?
Finally, do you know Patty Nelson Limerick? Most of what I think I know about the West, post childhood myths, is from her book Legacy of Conquest. She was a friend and dormmate of mine in grad school, although we lost touch long ago.
Michael Cain – here are some questions prompted by your electoral college stats.
IIRC you have suggested (predicted?) that the US will split in two east/west sometime in the not all that distant future. (Sorry, too lazy and time-pressed to try to find the actual comment(s)).
In light of the ideological divisions represented in the electoral college breakdowns (West and NE corridor aligned), how/why do you see a division as occurring along a line that divides the territory into east and west, rather than (let’s say) something that leaves the southeast and southern middle in one piece, and keeps the west, the far north (e.g. MN), and the northeast together…? (Okay, as my Ohioan born and bred dad used to say, Ohio is the most southern state in the north, so maybe the swath would be hard to complete.)
Also IIRC, you’ve said (forgive the hasty paraphrase) that the rest of the country has no idea of and no particular sympathy with the concerns of the West. Is that the reason for your east/west theory? And if the West were to break off and become its own separate thing, what do you think are the chances that the rest of the country would also split, more along north/south lines?
Finally, do you know Patty Nelson Limerick? Most of what I think I know about the West, post childhood myths, is from her book Legacy of Conquest. She was a friend and dormmate of mine in grad school, although we lost touch long ago.
Michael, a PS: would you like to do an actual post on this topic, in its very own thread?
Michael, a PS: would you like to do an actual post on this topic, in its very own thread?
Janie took the bytes out of my cable. Michael, if you’d like to post something, just send a text file to libjpn at gmail. Would really love to see it.
Janie took the bytes out of my cable. Michael, if you’d like to post something, just send a text file to libjpn at gmail. Would really love to see it.
Houston and East Texas are Southern — Houston is 25.3% African-American (vs El Paso’s 3.5%),
Another question that I hope you’ll address in a front page post (pleeeeese :^)) Was there an effect from the New Orleans diaspora post Katrina?, (which, as I understand it, was a large number of African-Americans moving west and Houston because the first stopping point.)
Houston and East Texas are Southern — Houston is 25.3% African-American (vs El Paso’s 3.5%),
Another question that I hope you’ll address in a front page post (pleeeeese :^)) Was there an effect from the New Orleans diaspora post Katrina?, (which, as I understand it, was a large number of African-Americans moving west and Houston because the first stopping point.)
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
the population of CA is larger than that of the 22 lowest population states, combined.
I’ll trade you CA for the 22 smallest population states.
Deal?
Well, there are terrible, terrible candidates, granted.
Still no reason to elect a dumpster full of dogshit.
thank you.
the difference between (R)’s and (D)’s is their terrible candidates win. which tells me a lot about the (R) electorate.
what never seems to come up in discussions about what a terrible candidate Clinton was is 25 years of freaking insane obsessive witch hunt, including accusations of murder and child sex trafficking and the fun-house carnivals that were the benghazi and email investgations.
or the 11-days-before-the-election reveal by the director of the freaking FBI of Startling New Evidence in the email investigation, which turned out to be emails from her aide’s computer which ended up aide’s hubby’s laptop.
i’m happy to fault clinton and the DNC for not campaigning more vigorously in WI and MI and OH. i’m not interested in talking about what a bad candidate clinton was while trump is sitting in the white house.
every single person that voted for him owes the rest of the nation and the world an apology. when those apologies are received, in writing, we can discuss what a terrible candidate clinton was.
sine the topic of penumbras and emanations has raised its hoary head, i would like to note (a) the size of the body of jurisprudence that addresses private property and the rights related to private property, and (b) the fact that property makes barely any appearance in the constitution.
the appearances are:
1. if the feds take yours, they have to pay you market value for it
2. if your property wanders into a state where it is not recognized as such, that state can’t prevent you from going and getting it
and (2) is, of course, moot as of about 1865.
where the hell did “property rights” come from?
for folks who want to invoke the sainted John Locke, i note that, per Locke, property rights, in their entirety, are rooted in the axiom that every human being is the owner of themselves, beginning with their physical self and being.
if you do not own your own body, and have the right to use it as you will, you have no other meaningful right. says john locke. go look it up.
this point may have some relevane to the perennial, and perennially intractable, debate about terminatin pregnancies.
or not. who knows.
And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.
the population of CA is larger than that of the 22 lowest population states, combined.
I’ll trade you CA for the 22 smallest population states.
Deal?
Well, there are terrible, terrible candidates, granted.
Still no reason to elect a dumpster full of dogshit.
thank you.
the difference between (R)’s and (D)’s is their terrible candidates win. which tells me a lot about the (R) electorate.
what never seems to come up in discussions about what a terrible candidate Clinton was is 25 years of freaking insane obsessive witch hunt, including accusations of murder and child sex trafficking and the fun-house carnivals that were the benghazi and email investgations.
or the 11-days-before-the-election reveal by the director of the freaking FBI of Startling New Evidence in the email investigation, which turned out to be emails from her aide’s computer which ended up aide’s hubby’s laptop.
i’m happy to fault clinton and the DNC for not campaigning more vigorously in WI and MI and OH. i’m not interested in talking about what a bad candidate clinton was while trump is sitting in the white house.
every single person that voted for him owes the rest of the nation and the world an apology. when those apologies are received, in writing, we can discuss what a terrible candidate clinton was.
sine the topic of penumbras and emanations has raised its hoary head, i would like to note (a) the size of the body of jurisprudence that addresses private property and the rights related to private property, and (b) the fact that property makes barely any appearance in the constitution.
the appearances are:
1. if the feds take yours, they have to pay you market value for it
2. if your property wanders into a state where it is not recognized as such, that state can’t prevent you from going and getting it
and (2) is, of course, moot as of about 1865.
where the hell did “property rights” come from?
for folks who want to invoke the sainted John Locke, i note that, per Locke, property rights, in their entirety, are rooted in the axiom that every human being is the owner of themselves, beginning with their physical self and being.
if you do not own your own body, and have the right to use it as you will, you have no other meaningful right. says john locke. go look it up.
this point may have some relevane to the perennial, and perennially intractable, debate about terminatin pregnancies.
or not. who knows.
As a counter to Trumpian myth, El Paso has a lot of undocumented immigrants and is one of the safest cities in the country.
As a counter to Trumpian myth, El Paso has a lot of undocumented immigrants and is one of the safest cities in the country.
As a counter to Trumpian myth, El Paso has a lot of undocumented immigrants and is one of the safest cities in the country.
Of course, there is a really strong negative correlation between the number of immigrants (legal or otherwise) and the level of panic about immigrants on the part of non-immigrants. Apparently (massive) ignorance is not bliss.
As a counter to Trumpian myth, El Paso has a lot of undocumented immigrants and is one of the safest cities in the country.
Of course, there is a really strong negative correlation between the number of immigrants (legal or otherwise) and the level of panic about immigrants on the part of non-immigrants. Apparently (massive) ignorance is not bliss.
russell: i’m not interested in talking about what a bad candidate clinton was while trump is sitting in the white house.
He, Trump is of course not “sitting in the White House” at the moment. He is en route to conspire with his KGB case officer. Putin needs to brief him on the international crisis Putin is planning for the day after Mueller issues his report.
It’s hard to be a “good candidate” when your real opponent is not the racist, misogynist, carnival barker on the other side of the ballot but the devious, kleptocratic KGB alum whose American confederates include the thugs at the NRA and Murdoch’s Ministry of Propaganda.
I’m still waiting for bc to tell us what Democrat he could have brought himself to vote for in 2016, after the deplorables and and the dupes nominated He, Trump.
I’m still waiting for ANY Republican (besides wj) to say flatly that Kavanaugh is too blatant a toady to be a SCOTUS Justice.
I expect to be waiting until … well, I was going to say until the Second Coming, but I think Jesus has too much sense to set foot in the US while any Americans still believe He is on the side of the Trump Syndicate.
–TP
russell: i’m not interested in talking about what a bad candidate clinton was while trump is sitting in the white house.
He, Trump is of course not “sitting in the White House” at the moment. He is en route to conspire with his KGB case officer. Putin needs to brief him on the international crisis Putin is planning for the day after Mueller issues his report.
It’s hard to be a “good candidate” when your real opponent is not the racist, misogynist, carnival barker on the other side of the ballot but the devious, kleptocratic KGB alum whose American confederates include the thugs at the NRA and Murdoch’s Ministry of Propaganda.
I’m still waiting for bc to tell us what Democrat he could have brought himself to vote for in 2016, after the deplorables and and the dupes nominated He, Trump.
I’m still waiting for ANY Republican (besides wj) to say flatly that Kavanaugh is too blatant a toady to be a SCOTUS Justice.
I expect to be waiting until … well, I was going to say until the Second Coming, but I think Jesus has too much sense to set foot in the US while any Americans still believe He is on the side of the Trump Syndicate.
–TP
Liberal Japonicus– “This always happens when I write out something long, the time difference means that the reply is quite far away.”
That’s why especially with you I try to Steelman the argument I think you’re making so because we only get a round trip response once a day.
“Has it been remarkably steady because public opinion is the ideal arbiter or because people have used it to create an issue?”
I sort of anticipated this response above. In the context of American politics, it feels like trying to have it both ways UNLESS you are willing to make the argument that Republicans aren’t good at harnessing racial anxiety/animosity. From my point of view they are pretty darn good at it, so unless the explanation is way more complicated than you’re laying out, it seems wrong.
“Especially among people who really have no standing to determine what is right and wrong?”
I don’t agree with this frame at all. Privilege analysis is about listening to people who have different experiences than oneself. It doesn’t make ultimate judgment impossible, it is supposed to guide the inputs you use to make ultimate judgment. In any case its irrelevant in the particular abortion case because any examination of gender differences on abortion beliefs shows that women and men in the population have almost identical views on the subject with a very very slight lean toward men being more ‘pro-choice’ than women. So whatever the merits of the “I can’t judge based on my gender”, it doesn’t effect abortion politics outcomes because men and women have essentially the same range and distribution of opinions. And like the other polls I’ve quoted, that fact is incredibly stable over the last 45 years.
Liberal Japonicus– “This always happens when I write out something long, the time difference means that the reply is quite far away.”
That’s why especially with you I try to Steelman the argument I think you’re making so because we only get a round trip response once a day.
“Has it been remarkably steady because public opinion is the ideal arbiter or because people have used it to create an issue?”
I sort of anticipated this response above. In the context of American politics, it feels like trying to have it both ways UNLESS you are willing to make the argument that Republicans aren’t good at harnessing racial anxiety/animosity. From my point of view they are pretty darn good at it, so unless the explanation is way more complicated than you’re laying out, it seems wrong.
“Especially among people who really have no standing to determine what is right and wrong?”
I don’t agree with this frame at all. Privilege analysis is about listening to people who have different experiences than oneself. It doesn’t make ultimate judgment impossible, it is supposed to guide the inputs you use to make ultimate judgment. In any case its irrelevant in the particular abortion case because any examination of gender differences on abortion beliefs shows that women and men in the population have almost identical views on the subject with a very very slight lean toward men being more ‘pro-choice’ than women. So whatever the merits of the “I can’t judge based on my gender”, it doesn’t effect abortion politics outcomes because men and women have essentially the same range and distribution of opinions. And like the other polls I’ve quoted, that fact is incredibly stable over the last 45 years.
“”emergency” is doing too much there. Was Brown v. Board an “emergency” situation? Loving? Griswold?”
Brown and Loving were both dealing with the continuing effort of states to harm the ability of ex-slaves and their children to live and prosper. What makes that more of an ’emergency’ is we had just fought a civil war over it, and didn’t want to re-open in that direction again.
From a pragmatic point of view I can see why people might stretch a little on the edges to pull that off, and the 14th amendment is right there to help anyway.
The problem is that the Burger and Warren courts took that as a sign that they could use the emergency powers they justified in non-emergency cases. So they ended up constitutionalizing a huge swath of things that could quite well have been dealt with on a legislative basis. During that period, the idea of getting the Court to constitutionalize things that you couldn’t even get through Congress really took off.
Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.
“”emergency” is doing too much there. Was Brown v. Board an “emergency” situation? Loving? Griswold?”
Brown and Loving were both dealing with the continuing effort of states to harm the ability of ex-slaves and their children to live and prosper. What makes that more of an ’emergency’ is we had just fought a civil war over it, and didn’t want to re-open in that direction again.
From a pragmatic point of view I can see why people might stretch a little on the edges to pull that off, and the 14th amendment is right there to help anyway.
The problem is that the Burger and Warren courts took that as a sign that they could use the emergency powers they justified in non-emergency cases. So they ended up constitutionalizing a huge swath of things that could quite well have been dealt with on a legislative basis. During that period, the idea of getting the Court to constitutionalize things that you couldn’t even get through Congress really took off.
Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.
“Brown and Loving were both dealing with the continuing effort of states to harm the ability of ex-slaves and their children to live and prosper. What makes that more of an ’emergency’ is we had just fought a civil war over it, and didn’t want to re-open in that direction again.”
One quibble.
We hadn’t “just fought” a civil war over it. It was a 90-year wait, three to four generations after the War. The rights conferred in those cases are apparently not God-given, like possession of an AR-15, or if so, with lengthy foot-dragging on His part.
Those rights don’t exist in geological time, like canyons cut from glaciers and rivers, they want to be satisfied in real time, as in NOW, like a seven-alarm fire wants to be doused by emergency crews.
If you, Sebastian, as a gay man, wish to marry and adopt children, say, with a gay black man, who do I think I am to make you wait another 90 years? Or another week?
Rod Dreher and his Society, which Margaret Thatcher claimed doesn’t exist, has other druthers.
Anyway, I’m glad you are back at Obsidian Wings.
We are all stuck in a leaky rowboat together rowing for separate harbors, in some cases, but look at them sharks and that enemy destroyer bearing down on us.
You pump, I’ll bail. Blogwise. Who gets cake can be ironed out on dry land.
“Brown and Loving were both dealing with the continuing effort of states to harm the ability of ex-slaves and their children to live and prosper. What makes that more of an ’emergency’ is we had just fought a civil war over it, and didn’t want to re-open in that direction again.”
One quibble.
We hadn’t “just fought” a civil war over it. It was a 90-year wait, three to four generations after the War. The rights conferred in those cases are apparently not God-given, like possession of an AR-15, or if so, with lengthy foot-dragging on His part.
Those rights don’t exist in geological time, like canyons cut from glaciers and rivers, they want to be satisfied in real time, as in NOW, like a seven-alarm fire wants to be doused by emergency crews.
If you, Sebastian, as a gay man, wish to marry and adopt children, say, with a gay black man, who do I think I am to make you wait another 90 years? Or another week?
Rod Dreher and his Society, which Margaret Thatcher claimed doesn’t exist, has other druthers.
Anyway, I’m glad you are back at Obsidian Wings.
We are all stuck in a leaky rowboat together rowing for separate harbors, in some cases, but look at them sharks and that enemy destroyer bearing down on us.
You pump, I’ll bail. Blogwise. Who gets cake can be ironed out on dry land.
I was going to say until the Second Coming, but I think Jesus has too much sense to set foot in the US while any Americans still believe He is on the side of the Trump Syndicate.
I think you do Jesus an injustice. I think it’s a prime opportunity for another Cleansing of the Temple.
“My house shall be called the house of prayer; but ye have made it a den of thieves.” Kind of resonates, doesn’t it?
I was going to say until the Second Coming, but I think Jesus has too much sense to set foot in the US while any Americans still believe He is on the side of the Trump Syndicate.
I think you do Jesus an injustice. I think it’s a prime opportunity for another Cleansing of the Temple.
“My house shall be called the house of prayer; but ye have made it a den of thieves.” Kind of resonates, doesn’t it?
No shortage of shit and fans:
https://www.balloon-juice.com/2018/07/13/gop-treason-leader-open-thread-lest-we-forget/
Listen to the embedded video of terrible, terrible Clinton’s words.
You don’t have to change a single word from 20 months ago to make them anymore accurate this afternoon about the facts. Even the fake ones have turned out to be true.
She had the vermin republican traitor cold.
I will admit it takes an operator to nail a psychopath.
I didn’t care for her hairdo however, and there was the lung cancer and epilepsy and the lesbian thing, so I can see the case for Gary Whatzallepo.
No shortage of shit and fans:
https://www.balloon-juice.com/2018/07/13/gop-treason-leader-open-thread-lest-we-forget/
Listen to the embedded video of terrible, terrible Clinton’s words.
You don’t have to change a single word from 20 months ago to make them anymore accurate this afternoon about the facts. Even the fake ones have turned out to be true.
She had the vermin republican traitor cold.
I will admit it takes an operator to nail a psychopath.
I didn’t care for her hairdo however, and there was the lung cancer and epilepsy and the lesbian thing, so I can see the case for Gary Whatzallepo.
And like the other polls I’ve quoted, that fact is incredibly stable over the last 45 years.
That is interesting, though not absolutely true:
https://news.gallup.com/poll/1576/abortion.aspx
http://www.pewforum.org/fact-sheet/public-opinion-on-abortion/
Why is not the case in (for example) Ireland ?
And like the other polls I’ve quoted, that fact is incredibly stable over the last 45 years.
That is interesting, though not absolutely true:
https://news.gallup.com/poll/1576/abortion.aspx
http://www.pewforum.org/fact-sheet/public-opinion-on-abortion/
Why is not the case in (for example) Ireland ?
I think you do Jesus an injustice. I think it’s a prime opportunity for another Cleansing of the Temple.
i think you overstate the status of the united states.
we ain’t no house of prayer.
I think you do Jesus an injustice. I think it’s a prime opportunity for another Cleansing of the Temple.
i think you overstate the status of the united states.
we ain’t no house of prayer.
But one with lots of praydators.
But one with lots of praydators.
Hi Sebastian, thank you for taking the time to answer. There are a lot of threads here, and I hope you won’t mind if I tug on a few of them.
You said
I don’t agree with this frame at all. Privilege analysis is about listening to people who have different experiences than oneself.
I have to disagree with that. If it were simply a question of putting the experiences of others out and letting people who have privilege listen to them, we shouldn’t really be having the problems we are having. It is about making people with privilege understand the _lived_ experiences of people who do not have, or have much less, privilege than them. It is making the white college student understand that the pranks that he might play in his college town would have an African American youth arrested or even shot. It is having the cis-gender male understand that he can casually relay an anecdote about his girlfriend or his wife that the gay person would have to be cautious about when talking about their partner. It is understanding that being able to ‘mansplain’ comes with the assumption that the woman doesn’t understand science or some other ‘manly’ subject. It is ‘getting people to listen’, but it is the ‘getting’ part you leave out. I’ve not heard it termed “Privilege analysis”, so this is just my opinion, but to me, it should not just be ‘listening to people’, it has to be getting the people with privilege to reconsider their attitudes and what they support.
That question of privilege is what animates my question of standing and of opinion polls. I think you and I would both have been suspicious in the past when cisgender people felt they could and should weigh in on what kind of decisions gay people make (and probably you more than me). So why should I (and Nigel, wj and bc to take three who have voiced similar positions) feel we can weigh in on a decision made by a woman? How do opinion polls give all of us that right? The kernel seems to be that you feel we, who believe that we don’t have the experience to weigh in on this, should accept your arguments for and support some framework that is different that Roe. Does this mean no rape exception? No morning after pill? What do opinion polls provide (polls that I’m a bit suspicious of, especially after Nigel points to their movement and the case of Ireland, where opinions seemed similarly frozen, but burst open.) _to us_ in terms of giving us the wherewithal to dictate in situations that we could never possibly have that experience?
One of the reasons I put my toe in this is that it is related to the blog and I have to wonder how we could have this conversation here, given that the commentariat is afaict predominantly white men with a certain financial level of comfort. How exactly do we ‘listen’ to people (women who may not have the financial wherewithal to deal with the ramifications of an unwanted pregnancy, and who would often be of color, given the way that US society is stratified) when they aren’t in this conversation? This seems a lot like privilege.
To tease apart questions about opinion polls a bit more, you say that
whatever the merits of the “I can’t judge based on my gender” [merits that I think are unanswered], it doesn’t effect abortion politics outcomes because men and women have essentially the same range and distribution of opinions.”
Nigel has pointed out that this isn’t strictly true and I think one should be very cautious about assuming that men and women have such similarity, and I don’t think all the polls make an attempt to tease out differences in gender, not to mention class and possibly ethnicity. And as someone here (maybe also Nigel?) pointed out, it is not the actions of the women that are what make #metoo believable, it is the reactions of the men and those reactions are indicative that male privilege is being threatened, so 45 years of polls not only fail to incorporate medical progress, they fail to incorporate changes in gender relations and fail to acknowledge what is going on in the world. I can imagine that a similar poll about sexual harassment might have showed similar results for 45 years, but maybe those results would have changed since Harvey Weinstein revelations. So drawing on relatively unchanged opinion polls doesn’t represent ‘opinion’ per se, it represents received wisdom of a lot of people, most of whom have never been personally touched by the question of abortion.
You also say that you anticipated my objection that the right has cynically kept opposition to abortion as a way to rally the populace, which may account for the lack of change, and you write:
it feels like trying to have it both ways UNLESS you are willing to make the argument that Republicans aren’t good at harnessing racial anxiety/animosity. From my point of view they are pretty darn good at it, so unless the explanation is way more complicated than you’re laying out, it seems wrong.
I quote that because if I want to make sure that I reference it properly. I’m not sure why I would have to make the argument that Republicans have been ineffective in harnessing racism to support their candidates in order to interrogate the position of the right on abortion. Is the claim that if they really had meant it, they would do it as effectively as they have done with racism?
That seems strange, we have lots of evidence for the former, so much so that they had to apologize for what they had done (and it looks as if the apology was really meaningless rhetoric). But how does that negate the way the Repblicans use abortion? To me, the Republican playbook on abortion looks similar to racism and gun control.
But if you want something akin to evidence of the cynical use of pro-life as a way of keeping a majority, this is something that looks like evidence. As I said, this is not a topic where I’m following every move and press release, but something like this gets to what I’m suggesting http://www.post-gazette.com/news/politics-nation/2017/10/03/rep-tim-Murphy-pro-life-sought-abortion-affair-shannon-edwards-susan-mosychuk-pennsylvania-chief-of-staff-congress-emails-texts/stories/201710030018
The article quotes Tim Murphy as texting when confronted with accusations that his pro-life stance was a sham “I get what you say about my March for life messages. I’ve never written them. Staff does them. I read them and winced. I told staff don’t write any more. I will.” While one person does not the Republicans make, the republican attacks on Planned Parenthood, and the provision of the ‘gag rule’, the inclusion of a pro-life plank all fit with just the kind of dynamic I was suggesting, which I feel has made opinion polls appear resistant to movement.
The Tim Murphy example also underlines that there is a structural asymmetry. Just as it was for homosexual rights, it is possible for a politician to claim that they are opposed to abortion, but then find that it is more convenient with circumstances, when having an abortion avoids a difficult PR matter, to forgo their principled opposition. Opinion polls don’t check to see if the men who are opposed to abortion would be willing to consider it if a child could harm their marriage or their daughter’s and/or family’s reputation, so I can’t really accept that those opinion polls represent clear guidelines. And while there are folks who try to make an equivalent case for hypocrisy among the Democrats as listed here
https://www.mediamatters.org/blog/2018/06/19/right-wing-media-attempt-distract-family-separation-policy-attacking-abortion-rights-instead/220490
I hope you and I can agree that this is simply a diversion and not a true argument. (in fact, I’m wondering why Trump hasn’t hit on demanding Democrats support legislation for a total ban on abortion as a price for reuniting families)
You close, possibly addressing Ugh, but I’ll quote it here with my emphasis:
Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.
I agree that race cases are different. That is because it is much easier to identify the person with standing and the effects are (usually?) clear to see and so opinion can drive them in particular ways (though I agree with hsh that I want the court to deal with injustices, but I recognize that they can’t fly around righting wrongs, there has to be a stage set and a narrative presented before that will happen. I see your argument as saying that opinion against abortion, which sides with the unborn, represents enough of a concern that the Supreme Court must respect the people who hold these opinions. You seem to want us to agree with you, but given my status, I just don’t see how the opinion polls do the work you claim they do in your argument.
Apologies if any of this was too sharp, and I echo the Count’s comment that I’m glad you are posting again. Would you like me to move you to the author’s column or change anything else with the front page? Thanks.
Hi Sebastian, thank you for taking the time to answer. There are a lot of threads here, and I hope you won’t mind if I tug on a few of them.
You said
I don’t agree with this frame at all. Privilege analysis is about listening to people who have different experiences than oneself.
I have to disagree with that. If it were simply a question of putting the experiences of others out and letting people who have privilege listen to them, we shouldn’t really be having the problems we are having. It is about making people with privilege understand the _lived_ experiences of people who do not have, or have much less, privilege than them. It is making the white college student understand that the pranks that he might play in his college town would have an African American youth arrested or even shot. It is having the cis-gender male understand that he can casually relay an anecdote about his girlfriend or his wife that the gay person would have to be cautious about when talking about their partner. It is understanding that being able to ‘mansplain’ comes with the assumption that the woman doesn’t understand science or some other ‘manly’ subject. It is ‘getting people to listen’, but it is the ‘getting’ part you leave out. I’ve not heard it termed “Privilege analysis”, so this is just my opinion, but to me, it should not just be ‘listening to people’, it has to be getting the people with privilege to reconsider their attitudes and what they support.
That question of privilege is what animates my question of standing and of opinion polls. I think you and I would both have been suspicious in the past when cisgender people felt they could and should weigh in on what kind of decisions gay people make (and probably you more than me). So why should I (and Nigel, wj and bc to take three who have voiced similar positions) feel we can weigh in on a decision made by a woman? How do opinion polls give all of us that right? The kernel seems to be that you feel we, who believe that we don’t have the experience to weigh in on this, should accept your arguments for and support some framework that is different that Roe. Does this mean no rape exception? No morning after pill? What do opinion polls provide (polls that I’m a bit suspicious of, especially after Nigel points to their movement and the case of Ireland, where opinions seemed similarly frozen, but burst open.) _to us_ in terms of giving us the wherewithal to dictate in situations that we could never possibly have that experience?
One of the reasons I put my toe in this is that it is related to the blog and I have to wonder how we could have this conversation here, given that the commentariat is afaict predominantly white men with a certain financial level of comfort. How exactly do we ‘listen’ to people (women who may not have the financial wherewithal to deal with the ramifications of an unwanted pregnancy, and who would often be of color, given the way that US society is stratified) when they aren’t in this conversation? This seems a lot like privilege.
To tease apart questions about opinion polls a bit more, you say that
whatever the merits of the “I can’t judge based on my gender” [merits that I think are unanswered], it doesn’t effect abortion politics outcomes because men and women have essentially the same range and distribution of opinions.”
Nigel has pointed out that this isn’t strictly true and I think one should be very cautious about assuming that men and women have such similarity, and I don’t think all the polls make an attempt to tease out differences in gender, not to mention class and possibly ethnicity. And as someone here (maybe also Nigel?) pointed out, it is not the actions of the women that are what make #metoo believable, it is the reactions of the men and those reactions are indicative that male privilege is being threatened, so 45 years of polls not only fail to incorporate medical progress, they fail to incorporate changes in gender relations and fail to acknowledge what is going on in the world. I can imagine that a similar poll about sexual harassment might have showed similar results for 45 years, but maybe those results would have changed since Harvey Weinstein revelations. So drawing on relatively unchanged opinion polls doesn’t represent ‘opinion’ per se, it represents received wisdom of a lot of people, most of whom have never been personally touched by the question of abortion.
You also say that you anticipated my objection that the right has cynically kept opposition to abortion as a way to rally the populace, which may account for the lack of change, and you write:
it feels like trying to have it both ways UNLESS you are willing to make the argument that Republicans aren’t good at harnessing racial anxiety/animosity. From my point of view they are pretty darn good at it, so unless the explanation is way more complicated than you’re laying out, it seems wrong.
I quote that because if I want to make sure that I reference it properly. I’m not sure why I would have to make the argument that Republicans have been ineffective in harnessing racism to support their candidates in order to interrogate the position of the right on abortion. Is the claim that if they really had meant it, they would do it as effectively as they have done with racism?
That seems strange, we have lots of evidence for the former, so much so that they had to apologize for what they had done (and it looks as if the apology was really meaningless rhetoric). But how does that negate the way the Repblicans use abortion? To me, the Republican playbook on abortion looks similar to racism and gun control.
But if you want something akin to evidence of the cynical use of pro-life as a way of keeping a majority, this is something that looks like evidence. As I said, this is not a topic where I’m following every move and press release, but something like this gets to what I’m suggesting http://www.post-gazette.com/news/politics-nation/2017/10/03/rep-tim-Murphy-pro-life-sought-abortion-affair-shannon-edwards-susan-mosychuk-pennsylvania-chief-of-staff-congress-emails-texts/stories/201710030018
The article quotes Tim Murphy as texting when confronted with accusations that his pro-life stance was a sham “I get what you say about my March for life messages. I’ve never written them. Staff does them. I read them and winced. I told staff don’t write any more. I will.” While one person does not the Republicans make, the republican attacks on Planned Parenthood, and the provision of the ‘gag rule’, the inclusion of a pro-life plank all fit with just the kind of dynamic I was suggesting, which I feel has made opinion polls appear resistant to movement.
The Tim Murphy example also underlines that there is a structural asymmetry. Just as it was for homosexual rights, it is possible for a politician to claim that they are opposed to abortion, but then find that it is more convenient with circumstances, when having an abortion avoids a difficult PR matter, to forgo their principled opposition. Opinion polls don’t check to see if the men who are opposed to abortion would be willing to consider it if a child could harm their marriage or their daughter’s and/or family’s reputation, so I can’t really accept that those opinion polls represent clear guidelines. And while there are folks who try to make an equivalent case for hypocrisy among the Democrats as listed here
https://www.mediamatters.org/blog/2018/06/19/right-wing-media-attempt-distract-family-separation-policy-attacking-abortion-rights-instead/220490
I hope you and I can agree that this is simply a diversion and not a true argument. (in fact, I’m wondering why Trump hasn’t hit on demanding Democrats support legislation for a total ban on abortion as a price for reuniting families)
You close, possibly addressing Ugh, but I’ll quote it here with my emphasis:
Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.
I agree that race cases are different. That is because it is much easier to identify the person with standing and the effects are (usually?) clear to see and so opinion can drive them in particular ways (though I agree with hsh that I want the court to deal with injustices, but I recognize that they can’t fly around righting wrongs, there has to be a stage set and a narrative presented before that will happen. I see your argument as saying that opinion against abortion, which sides with the unborn, represents enough of a concern that the Supreme Court must respect the people who hold these opinions. You seem to want us to agree with you, but given my status, I just don’t see how the opinion polls do the work you claim they do in your argument.
Apologies if any of this was too sharp, and I echo the Count’s comment that I’m glad you are posting again. Would you like me to move you to the author’s column or change anything else with the front page? Thanks.
Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.
the majority of the country has never been women of childbearing age, so maybe the majority of the country should STFU about things that don’t concern its health.
Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.
the majority of the country has never been women of childbearing age, so maybe the majority of the country should STFU about things that don’t concern its health.
so, Roe, the issue that won’t go away. some thoughts.
the SCOTUS is not obliged to rule based on popular sentiment. I understand the point Sebastian is making – if they consistently rule against popular sentiment, such that the people’s will is continually thwarted, we end up with a very serious political problem. But fundamentally, it’s not really their job to take the temperature of the body politic and rule accordingly.
We are not a democracy. We are a republic. What distinguishes republican rule from a pure democracy is that there are boundaries which may not be crossed, regardless of majority preferences.
The fundamental issue behind Roe is: when does a fertilized egg become a human person deserving of the protections guaranteed by the Constitution? The reason the question is difficult is that there is not only not a clear consensus understanding of its answer, there is not even a clear consensus understanding of the basis for answering it.
And, the various bases for answering it partake of religious faith and practice, which the feds are not allowed to either establish or prohibit.
All of that might argue for leaving the question the hell out of federal jurisdiction, except that the question *also* touches on the right of people to have agency about their own physical person.
Which is to say, absent access to abortion, women who don’t want to bring a pregnancy to term are nonetheless required to do so. Which is a fairly consequential requirement.
And, in our own political and legal tradition, the right to have agency about your own person – the right to own decisions about what does or does not happen to *you*, as a concrete physical being – is not only a fundamental right, it is *the* fundamental right from which all others flow.
See also my comment upthread re: Locke.
If you don’t have the liberty to do as you wish with your own physical self, you have no liberty at all. So says Locke, and so says the legal and political traditions in which he stands, and in which we stand.
The “right to privacy” that Douglas found in Griswold is essentially just an expression of that. He found it as a “penumbra”, which sounds like silly will-o-the-wisp hoo-hah to our textualist friends, but if you think for two minutes about the range and variety of things that we recognize as fundamental, irrevocable, inalienable rights in our jurisprudence and our national institutions, and do so candidly, you will surely stumble across penumbras everywhere you look.
See also my comment upthread about property.
What the SCOTUS did in Roe was define a bright line establishing the point at which the state would recognize an interest in the emerging human being. Or, bright-ish. Or, really, a couple of lines, one for the emerging human, one for the parent.
During the period before viability, and while the procedure posed minimal risk to the mother, the state has no say.
During the period before viability, but when the procedure is more risky, the state may intervene to protect the safety of the mother.
After viability, the emerging human is recognized as a person deserving constitutional protection.
To me, that seems like a pretty good place to land. Probably the best that could be asked.
If nobody had ever brought it to the SCOTUS, we wouldn’t be in this mess. But somebody did, because there was a state law telling that somebody that their control over their own physical self was moot, because they were pregnant.
In all of this, you will note that I make no comment about the morality or desirability of the procedure of abortion. I don’t do so, and won’t do so, because whatever comment I might make, if any, would be based on a personal understanding of the nature of what being human is. Which, in turn, would be rooted in things that *do not have a place* in federal law, because the Constitution specifically and explicitly excludes them.
I’m just talking about the issue as it impinges on the res publica – the public life we all share.
I’ll also say that Roe, like Loving and Griswold, DO NOT REQUIRE ANYONE TO DO ANYTHING THAT VIOLATES THEIR CONSCIENCE. They simply limit the degree to which folks with one set of beliefs can constrain the actions of folks who don’t share those beliefs.
I understand why people don’t like abortions. For that matter, people who *get* abortions generally don’t like abortions. In general, terminating a pregnancy is not a completely positive event in anyone’s life, or a positive event at all.
I get that many people see it as an act of murder, and respect that sentiment. And, understand why that would motivate them to want to prevent it.
And, all of that said, I also recognize that the things that lead people to see it that way are rooted in beliefs and practices that have been, explicitly, excluded from the public sphere. The feds cannot establish a religion or religious practice, nor can they prohibit them. Your conscience is yours, you may observe it, but you may not require others to do so.
It’s an intractable problem. In 40 years I have not seen anyone’s opinion on the topic move more than an inch or so in any direction. We’ll keep yelling about it, and various partisans will keep manipulating it to stoke up their various bases.
But I think what we got is about as good as we’re gonna get. My opinion, obviously.
so, Roe, the issue that won’t go away. some thoughts.
the SCOTUS is not obliged to rule based on popular sentiment. I understand the point Sebastian is making – if they consistently rule against popular sentiment, such that the people’s will is continually thwarted, we end up with a very serious political problem. But fundamentally, it’s not really their job to take the temperature of the body politic and rule accordingly.
We are not a democracy. We are a republic. What distinguishes republican rule from a pure democracy is that there are boundaries which may not be crossed, regardless of majority preferences.
The fundamental issue behind Roe is: when does a fertilized egg become a human person deserving of the protections guaranteed by the Constitution? The reason the question is difficult is that there is not only not a clear consensus understanding of its answer, there is not even a clear consensus understanding of the basis for answering it.
And, the various bases for answering it partake of religious faith and practice, which the feds are not allowed to either establish or prohibit.
All of that might argue for leaving the question the hell out of federal jurisdiction, except that the question *also* touches on the right of people to have agency about their own physical person.
Which is to say, absent access to abortion, women who don’t want to bring a pregnancy to term are nonetheless required to do so. Which is a fairly consequential requirement.
And, in our own political and legal tradition, the right to have agency about your own person – the right to own decisions about what does or does not happen to *you*, as a concrete physical being – is not only a fundamental right, it is *the* fundamental right from which all others flow.
See also my comment upthread re: Locke.
If you don’t have the liberty to do as you wish with your own physical self, you have no liberty at all. So says Locke, and so says the legal and political traditions in which he stands, and in which we stand.
The “right to privacy” that Douglas found in Griswold is essentially just an expression of that. He found it as a “penumbra”, which sounds like silly will-o-the-wisp hoo-hah to our textualist friends, but if you think for two minutes about the range and variety of things that we recognize as fundamental, irrevocable, inalienable rights in our jurisprudence and our national institutions, and do so candidly, you will surely stumble across penumbras everywhere you look.
See also my comment upthread about property.
What the SCOTUS did in Roe was define a bright line establishing the point at which the state would recognize an interest in the emerging human being. Or, bright-ish. Or, really, a couple of lines, one for the emerging human, one for the parent.
During the period before viability, and while the procedure posed minimal risk to the mother, the state has no say.
During the period before viability, but when the procedure is more risky, the state may intervene to protect the safety of the mother.
After viability, the emerging human is recognized as a person deserving constitutional protection.
To me, that seems like a pretty good place to land. Probably the best that could be asked.
If nobody had ever brought it to the SCOTUS, we wouldn’t be in this mess. But somebody did, because there was a state law telling that somebody that their control over their own physical self was moot, because they were pregnant.
In all of this, you will note that I make no comment about the morality or desirability of the procedure of abortion. I don’t do so, and won’t do so, because whatever comment I might make, if any, would be based on a personal understanding of the nature of what being human is. Which, in turn, would be rooted in things that *do not have a place* in federal law, because the Constitution specifically and explicitly excludes them.
I’m just talking about the issue as it impinges on the res publica – the public life we all share.
I’ll also say that Roe, like Loving and Griswold, DO NOT REQUIRE ANYONE TO DO ANYTHING THAT VIOLATES THEIR CONSCIENCE. They simply limit the degree to which folks with one set of beliefs can constrain the actions of folks who don’t share those beliefs.
I understand why people don’t like abortions. For that matter, people who *get* abortions generally don’t like abortions. In general, terminating a pregnancy is not a completely positive event in anyone’s life, or a positive event at all.
I get that many people see it as an act of murder, and respect that sentiment. And, understand why that would motivate them to want to prevent it.
And, all of that said, I also recognize that the things that lead people to see it that way are rooted in beliefs and practices that have been, explicitly, excluded from the public sphere. The feds cannot establish a religion or religious practice, nor can they prohibit them. Your conscience is yours, you may observe it, but you may not require others to do so.
It’s an intractable problem. In 40 years I have not seen anyone’s opinion on the topic move more than an inch or so in any direction. We’ll keep yelling about it, and various partisans will keep manipulating it to stoke up their various bases.
But I think what we got is about as good as we’re gonna get. My opinion, obviously.
russell — thank you. Thanks also to everyone who has commented on this topic, especially Sebastian and lj, not only for the content of their comments but for the respect they’ve shown each other and everyone else.
I thank russell not only for both those things, but for saving me half a day of trying to say a lot of similar things from a slightly different vantage point. russell, as usual, said them better, and more appositely, but there’s one thing he wrote that I want to come back to: After viability, the emerging human is recognized as a person deserving constitutional protection.
Even then, as Ellen Goodman once said in a column I haven’t been able to find this morning, the situation has no parallel, and it is life itself that puts us here: one human person deserving constitutional protection inside the body of another person deserving constitutional protection. No wonder we argue endlessly over where to draw the line.
In a different world, the line might be drawn differently. In this world — and this is what I worked myself around to when I felt I had to decide where I stood on abortion many years ago — when someone has to decide whether to carry a pregnancy to term, then up to a point — and I’m happy enough with where Roe set that point — it should not be a bunch of priests or legislators or judges (mostly, it still has to be said, esp. in the good old US of A, male) or neighbors or relatives or anyone at all but the woman who is pregnant who makes that decision. Even the contributor of sperm (to be clinical about it) — who I think has arguably a lot more of an interest than the priests and etc. — can’t get around the fact that what we are arguing about is something inside the body of a human being, and no one should own or control that body but the human being herself. If abortion were freely available and unstigmatized, and no woman was so poor and/or disadvantaged as to be prevented from easy access to one, then we would be pretty close to rid of the problem of when the fetus becomes a human being with rights that have to be balanced against the pregnant woman’s.
russell — thank you. Thanks also to everyone who has commented on this topic, especially Sebastian and lj, not only for the content of their comments but for the respect they’ve shown each other and everyone else.
I thank russell not only for both those things, but for saving me half a day of trying to say a lot of similar things from a slightly different vantage point. russell, as usual, said them better, and more appositely, but there’s one thing he wrote that I want to come back to: After viability, the emerging human is recognized as a person deserving constitutional protection.
Even then, as Ellen Goodman once said in a column I haven’t been able to find this morning, the situation has no parallel, and it is life itself that puts us here: one human person deserving constitutional protection inside the body of another person deserving constitutional protection. No wonder we argue endlessly over where to draw the line.
In a different world, the line might be drawn differently. In this world — and this is what I worked myself around to when I felt I had to decide where I stood on abortion many years ago — when someone has to decide whether to carry a pregnancy to term, then up to a point — and I’m happy enough with where Roe set that point — it should not be a bunch of priests or legislators or judges (mostly, it still has to be said, esp. in the good old US of A, male) or neighbors or relatives or anyone at all but the woman who is pregnant who makes that decision. Even the contributor of sperm (to be clinical about it) — who I think has arguably a lot more of an interest than the priests and etc. — can’t get around the fact that what we are arguing about is something inside the body of a human being, and no one should own or control that body but the human being herself. If abortion were freely available and unstigmatized, and no woman was so poor and/or disadvantaged as to be prevented from easy access to one, then we would be pretty close to rid of the problem of when the fetus becomes a human being with rights that have to be balanced against the pregnant woman’s.
The fundamental issue behind Roe is: when does a fertilized egg become a human person deserving of the protections guaranteed by the Constitution? The reason the question is difficult is that there is not only not a clear consensus understanding of its answer, there is not even a clear consensus understanding of the basis for answering it.
And, the various bases for answering it partake of religious faith and practice, which the feds are not allowed to either establish or prohibit.
If only, if only.
I completely agree with the first sentence. But unfortunately, that’s not where everyone is coming from. For a lot of people (for my money a substantial majority of the “pro-life” folks, but I don’t know of any hard data on the subject), “At what point do we have a human person?” isn’t the question. It’s the answer.
That is, their objection to abortion doesn’t arise out of their theology; their theology arises out of their position on abortion. That position may be, initially, cultural or it may be political. But it ain’t religious.
For anyone who doubts this, take a look at two of the big religious groups who oppose abortion, ostensibly based on a religious belief that “life begins at conception”: the Southern Baptists and the Roman Catholics. (No offense to other religions.)
Until some time in the early 1970s (i.e. pre Roe), the official, published position of the Southern Baptist Convention was pro legalization of abortion. And the Catholic Church’s position on when human life begins has varied substantial over the centuries — at one point being some days after birth. Which makes it difficult to credit the argument that theology is the basis of their position today.
It seems to me that this is both good and bad news. The bad news is, trying to resolve the “When does human life begin and so deserve legal recognition?” question isn’t going to get us anywhere. The good news is, theologies (at least official theologies) are malleable. They’ve changed before on this subject and they can change again. So what needs to be addressed is the basis behind them.
As a related thought: under Trump, his supporters have completely reversed their positions on many topics. What would happen if, for whatever reason, he came out in favor of, say, abortion on demand? Given his track record, is there any reason that he wouldn’t?
The fundamental issue behind Roe is: when does a fertilized egg become a human person deserving of the protections guaranteed by the Constitution? The reason the question is difficult is that there is not only not a clear consensus understanding of its answer, there is not even a clear consensus understanding of the basis for answering it.
And, the various bases for answering it partake of religious faith and practice, which the feds are not allowed to either establish or prohibit.
If only, if only.
I completely agree with the first sentence. But unfortunately, that’s not where everyone is coming from. For a lot of people (for my money a substantial majority of the “pro-life” folks, but I don’t know of any hard data on the subject), “At what point do we have a human person?” isn’t the question. It’s the answer.
That is, their objection to abortion doesn’t arise out of their theology; their theology arises out of their position on abortion. That position may be, initially, cultural or it may be political. But it ain’t religious.
For anyone who doubts this, take a look at two of the big religious groups who oppose abortion, ostensibly based on a religious belief that “life begins at conception”: the Southern Baptists and the Roman Catholics. (No offense to other religions.)
Until some time in the early 1970s (i.e. pre Roe), the official, published position of the Southern Baptist Convention was pro legalization of abortion. And the Catholic Church’s position on when human life begins has varied substantial over the centuries — at one point being some days after birth. Which makes it difficult to credit the argument that theology is the basis of their position today.
It seems to me that this is both good and bad news. The bad news is, trying to resolve the “When does human life begin and so deserve legal recognition?” question isn’t going to get us anywhere. The good news is, theologies (at least official theologies) are malleable. They’ve changed before on this subject and they can change again. So what needs to be addressed is the basis behind them.
As a related thought: under Trump, his supporters have completely reversed their positions on many topics. What would happen if, for whatever reason, he came out in favor of, say, abortion on demand? Given his track record, is there any reason that he wouldn’t?
russell — thank you. Thanks also to everyone who has commented on this topic, especially Sebastian and lj, not only for the content of their comments but for the respect they’ve shown each other and everyone else.
I totally agree. And would just add to Janie’s last sentence that what would also add to this desirable outcome is if good sex education was mandatory and contraception freely available.
russell — thank you. Thanks also to everyone who has commented on this topic, especially Sebastian and lj, not only for the content of their comments but for the respect they’ve shown each other and everyone else.
I totally agree. And would just add to Janie’s last sentence that what would also add to this desirable outcome is if good sex education was mandatory and contraception freely available.
If abortion were freely available and unstigmatized, and no woman was so poor and/or disadvantaged as to be prevented from easy access to one, then we would be pretty close to rid of the problem of when the fetus becomes a human being with rights that have to be balanced against the pregnant woman’s.
Janie, somehow this feels like assuming the conclusion. What I mean is that the stigma can’t really go away absent a conclusion on when the fetus is a human being with rights, including a right to life.
Also, it’s not like we have no experience balancing two individuals’ right to life. After all, what else is a “self defense” justification for a homicide but a statement on why one person’s right to life trumped another? (Not saying there is anything else that is a parallel here, necessarily. Just that the issue is the same.)
So while we don’t yet have a complete answer, we could get to one. And, indeed, we are part way along that path. There is far more support for a “life of the mother” justification than for several others that come into play. It ain’t much, but it’s a start.
If abortion were freely available and unstigmatized, and no woman was so poor and/or disadvantaged as to be prevented from easy access to one, then we would be pretty close to rid of the problem of when the fetus becomes a human being with rights that have to be balanced against the pregnant woman’s.
Janie, somehow this feels like assuming the conclusion. What I mean is that the stigma can’t really go away absent a conclusion on when the fetus is a human being with rights, including a right to life.
Also, it’s not like we have no experience balancing two individuals’ right to life. After all, what else is a “self defense” justification for a homicide but a statement on why one person’s right to life trumped another? (Not saying there is anything else that is a parallel here, necessarily. Just that the issue is the same.)
So while we don’t yet have a complete answer, we could get to one. And, indeed, we are part way along that path. There is far more support for a “life of the mother” justification than for several others that come into play. It ain’t much, but it’s a start.
Also, what GftNC said.
Also, what GftNC said.
Well they do get to choose which cases they want to take, so ‘only on the cases…brought before it’ isn’t quite right.
Sure it is. They don’t rule on anything that isn’t brought before them. That they can choose not to take cases doesn’t change that.
If I were going to say that it isn’t quite right, I would say that they might make a ruling that is far broader than necessary to address the specific case at hand (but, even then, they still need a case to rule on to do that). Case in point – Citizens United.
Well they do get to choose which cases they want to take, so ‘only on the cases…brought before it’ isn’t quite right.
Sure it is. They don’t rule on anything that isn’t brought before them. That they can choose not to take cases doesn’t change that.
If I were going to say that it isn’t quite right, I would say that they might make a ruling that is far broader than necessary to address the specific case at hand (but, even then, they still need a case to rule on to do that). Case in point – Citizens United.
wj, the self defense model is actually used in rabbinic discussion on abortion. If the pregnancy threatens the life and wellbeing of the mother, the unborn can be declared a ‘rodef’ (persecutor), that can be killed without violating the commandments. The moment the baby’s head is outside the woman’s body (which btw is a common legal definition of the time of birth) it becomes a full human being in its own right that may not be killed.
In contrast, some strict Christian interpretations put baptism above the life of both the woman and the child. Some Roman Catholic hospitals have or had this as official policy, i.e. the mother’s life can be sacrificed, if there is a chance that the baby can be kept alive long enough for baptism (but otherwise would die and go to hell*).
*this Augustinian abomination was abolished with Vaticanum II but the hospital policy was kept up to at least John Paul II.
wj, the self defense model is actually used in rabbinic discussion on abortion. If the pregnancy threatens the life and wellbeing of the mother, the unborn can be declared a ‘rodef’ (persecutor), that can be killed without violating the commandments. The moment the baby’s head is outside the woman’s body (which btw is a common legal definition of the time of birth) it becomes a full human being in its own right that may not be killed.
In contrast, some strict Christian interpretations put baptism above the life of both the woman and the child. Some Roman Catholic hospitals have or had this as official policy, i.e. the mother’s life can be sacrificed, if there is a chance that the baby can be kept alive long enough for baptism (but otherwise would die and go to hell*).
*this Augustinian abomination was abolished with Vaticanum II but the hospital policy was kept up to at least John Paul II.
It seems likely that technology will make it moot. Viability will go way down in the time frame with the advent of artificial wombs or some such.
It seems likely that technology will make it moot. Viability will go way down in the time frame with the advent of artificial wombs or some such.
Seb, that may be true but it will be extremly expensive. And that can easily lead to an even greater imbalance between the wealthy (who can get an abortion anyway even if it is illegal) and the poor who won’t be able to afford ‘externalizing’ their problem via e.g. artificial wombs while the theoretical ability would push the legal abortion terminus ante quem down.
Seb, that may be true but it will be extremly expensive. And that can easily lead to an even greater imbalance between the wealthy (who can get an abortion anyway even if it is illegal) and the poor who won’t be able to afford ‘externalizing’ their problem via e.g. artificial wombs while the theoretical ability would push the legal abortion terminus ante quem down.
Viability will go way down in the time frame with the advent of artificial wombs or some such.
I’m not holding my breath. First, “artificial womb” understates the complexity of the problem. It’s much more like “artificial mom” since the system will have to include making really good synthetic blood, the complete hormonal feedback system that regulates development, etc. Second, the “oops” moments in testing with human fetuses present serious questions about ethics.
Viability will go way down in the time frame with the advent of artificial wombs or some such.
I’m not holding my breath. First, “artificial womb” understates the complexity of the problem. It’s much more like “artificial mom” since the system will have to include making really good synthetic blood, the complete hormonal feedback system that regulates development, etc. Second, the “oops” moments in testing with human fetuses present serious questions about ethics.
a viable artificial womb obviates a Handmaid’s Tale future, however.
a viable artificial womb obviates a Handmaid’s Tale future, however.
I believe it may not be the wombs that are the problem in THT, but viable eggs. And you’d have to forcibly extract them from fertile but unwilling women….
I believe it may not be the wombs that are the problem in THT, but viable eggs. And you’d have to forcibly extract them from fertile but unwilling women….
I’m sure some of those “rah rah genetic engineering is going to save the world” types would say that there will come a time when we won’t need any slimy actual human bodies to make new humans. We’ll GE some DNA and have gestation tanks, and then the question won’t be about access to abortion, it will be: are actual humans allowed to make babies at all?
Marge Piercy’s Woman on the Edge of Time (1976) portrays a utopian society in which fetuses are gestated in tanks. (I don’t remember how they get them started; it’s forty years since I read it.) Three adults have to agree to be co-parents before an embryo is created, and two of the the three have to agree to breast-feed (there are hormones treatments that allow men to breast-feed). I.e., among other things, the gender differentiation is removed from child-bearing and child-rearing. At the age of fourteen, a child goes off on a coming of age journey, as much to reinforce to the parents that the child is now an independent adult as to allow the child to visit villages (helpful in deciding where to settle down), think about occupations, etc.
Meanwhile, the mention of “artificial wombs” and how much they’ll cost underscores an aspect of the abortion debate that we haven’t really touched on. Not that I’m the first person to remark upon it, but the same people who are most vocally anti-abortion don’t seem to care a whole damned lot about the welfare of actual living children. Nope, that’s for the slutty mother to worry about if she happens to get pregnant without the means to raise a child, and serve her (and the child) right, too.
I’m sure some of those “rah rah genetic engineering is going to save the world” types would say that there will come a time when we won’t need any slimy actual human bodies to make new humans. We’ll GE some DNA and have gestation tanks, and then the question won’t be about access to abortion, it will be: are actual humans allowed to make babies at all?
Marge Piercy’s Woman on the Edge of Time (1976) portrays a utopian society in which fetuses are gestated in tanks. (I don’t remember how they get them started; it’s forty years since I read it.) Three adults have to agree to be co-parents before an embryo is created, and two of the the three have to agree to breast-feed (there are hormones treatments that allow men to breast-feed). I.e., among other things, the gender differentiation is removed from child-bearing and child-rearing. At the age of fourteen, a child goes off on a coming of age journey, as much to reinforce to the parents that the child is now an independent adult as to allow the child to visit villages (helpful in deciding where to settle down), think about occupations, etc.
Meanwhile, the mention of “artificial wombs” and how much they’ll cost underscores an aspect of the abortion debate that we haven’t really touched on. Not that I’m the first person to remark upon it, but the same people who are most vocally anti-abortion don’t seem to care a whole damned lot about the welfare of actual living children. Nope, that’s for the slutty mother to worry about if she happens to get pregnant without the means to raise a child, and serve her (and the child) right, too.
I don’t really understand how the artificial womb solves things.
If a woman is pregnant and doesn’t want to be, she somehow transfers the fetus to an artificial womb instead?
What if she doesn’t want to have a child at that particular point in time, full stop?
I don’t really understand how the artificial womb solves things.
If a woman is pregnant and doesn’t want to be, she somehow transfers the fetus to an artificial womb instead?
What if she doesn’t want to have a child at that particular point in time, full stop?
@JanieM
…and keeps the west, the far north (e.g. MN), and the northeast together…?
There’s those pesky 500-mile-wide depopulating Great Plains between MN and the West. Unless you assume the inclusion of the Dakotas and Nebraska in “the far north”, there’s a huge non-air transportation break. When I talk about a partition I’m talking well into the future (ie, becomes a topic of actual discussion by 2035, happens by 2060); I think the “infrastructure gap” caused by the Great Plains will be a critical factor. YMMV.
…and no particular sympathy with the concerns of the West.
Say, rather, that they have their own concerns which are different from the West. Eg, the extended Rust Belt has a problem with urban cores and needs at least a half-trillion dollars to fix those cities’ sewer systems. Western cities, in contrast, missed the urban-core collapse and are booming with tons of shiny new infrastructure.
Finally, do you know Patty Nelson Limerick?
I know of her, but have never met her.
…would you like to do an actual post on this topic, in its very own thread?
lj reached out to me by e-mail. I have to think about it.
@JanieM
…and keeps the west, the far north (e.g. MN), and the northeast together…?
There’s those pesky 500-mile-wide depopulating Great Plains between MN and the West. Unless you assume the inclusion of the Dakotas and Nebraska in “the far north”, there’s a huge non-air transportation break. When I talk about a partition I’m talking well into the future (ie, becomes a topic of actual discussion by 2035, happens by 2060); I think the “infrastructure gap” caused by the Great Plains will be a critical factor. YMMV.
…and no particular sympathy with the concerns of the West.
Say, rather, that they have their own concerns which are different from the West. Eg, the extended Rust Belt has a problem with urban cores and needs at least a half-trillion dollars to fix those cities’ sewer systems. Western cities, in contrast, missed the urban-core collapse and are booming with tons of shiny new infrastructure.
Finally, do you know Patty Nelson Limerick?
I know of her, but have never met her.
…would you like to do an actual post on this topic, in its very own thread?
lj reached out to me by e-mail. I have to think about it.
If a woman is pregnant and doesn’t want to be, she somehow transfers the fetus to an artificial womb instead?
i think it would just take the place of surrogate mothers.
If a woman is pregnant and doesn’t want to be, she somehow transfers the fetus to an artificial womb instead?
i think it would just take the place of surrogate mothers.
I don’t really understand how the artificial womb solves things.
In Sebastian’s original comment (which was brief, so maybe I misunderstood the point), I think it related to the viability question, and I don’t think anyone said it “solves” things.
If we draw a legal line in relation to abortion by citing viability, and viability gets earlier and earlier, that changes the discussion. If it gets to the point where gestation can happen in an “artificial womb,” then it would seem that there’s *no* point at which it isn’t “viable.”
I didn’t want to address that formulation directly in my earlier comment, because I think it reduces the current legal framework to an absurdity, while it raises a raft, or aircraft carrier, of new questions and problems. For example: who pays?
I don’t really understand how the artificial womb solves things.
In Sebastian’s original comment (which was brief, so maybe I misunderstood the point), I think it related to the viability question, and I don’t think anyone said it “solves” things.
If we draw a legal line in relation to abortion by citing viability, and viability gets earlier and earlier, that changes the discussion. If it gets to the point where gestation can happen in an “artificial womb,” then it would seem that there’s *no* point at which it isn’t “viable.”
I didn’t want to address that formulation directly in my earlier comment, because I think it reduces the current legal framework to an absurdity, while it raises a raft, or aircraft carrier, of new questions and problems. For example: who pays?
What if she doesn’t want to have a child at that particular point in time, full stop?
And there’s the real question.
What if she doesn’t want to have a child at that particular point in time, full stop?
And there’s the real question.
I sang a Blink-182 song last night at karaoke.
Blink-182 is a pheremone secreted by the liver, don’t you know?
Partition, artificial wombs, the facts of Roe v Wade, the role and makeup of the Senate … here are the nitwits and unfortunately unaborted subhuman scum you’ll be negotiating with:
https://www.eschatonblog.com/2018/07/a-rudimentary-knowledge-of-mortars.html
Here’s the difference between Hitler/Stalin and the authoritarian republican vermin elected by American republican murderous vermin: Except for Hitler’s funny walk, no one found the two of them humorous. Everyone knew eventually that Hitler and Stalin would have to be goddamned defeated and killed.
The American version lulls us into believing such thigh-slapping ignoramuses pose no particular danger to us.
Laugh while there is still time.
We continue to mishear their plan:
https://www.youtube.com/watch?v=vROih4weKoM
I sang a Blink-182 song last night at karaoke.
Blink-182 is a pheremone secreted by the liver, don’t you know?
Partition, artificial wombs, the facts of Roe v Wade, the role and makeup of the Senate … here are the nitwits and unfortunately unaborted subhuman scum you’ll be negotiating with:
https://www.eschatonblog.com/2018/07/a-rudimentary-knowledge-of-mortars.html
Here’s the difference between Hitler/Stalin and the authoritarian republican vermin elected by American republican murderous vermin: Except for Hitler’s funny walk, no one found the two of them humorous. Everyone knew eventually that Hitler and Stalin would have to be goddamned defeated and killed.
The American version lulls us into believing such thigh-slapping ignoramuses pose no particular danger to us.
Laugh while there is still time.
We continue to mishear their plan:
https://www.youtube.com/watch?v=vROih4weKoM
If it gets to the point where gestation can happen in an “artificial womb,” then it would seem that there’s *no* point at which it isn’t “viable.”
if that was the point, i don’t see how it achieves that. the fetus is not magically viable at earlier stages, it’s just not inside the woman.
it does more or less moot the argument that the woman is no longer required to surrender control over her body. it does, however, require somerbody, somewhere to care for and raise the child for the next 18 years. or more.
all of which assumes that artificial gestation environments raise no difficult issues of their own.
several thousand frozen embryos were lost at clinics in cleveland and california recently. unfortunate accident? mass murder?
as far as confounding questions, artificial gestation will be that, times orders of magnitude.
you can’t wave the issue away with a technological work-around.
If it gets to the point where gestation can happen in an “artificial womb,” then it would seem that there’s *no* point at which it isn’t “viable.”
if that was the point, i don’t see how it achieves that. the fetus is not magically viable at earlier stages, it’s just not inside the woman.
it does more or less moot the argument that the woman is no longer required to surrender control over her body. it does, however, require somerbody, somewhere to care for and raise the child for the next 18 years. or more.
all of which assumes that artificial gestation environments raise no difficult issues of their own.
several thousand frozen embryos were lost at clinics in cleveland and california recently. unfortunate accident? mass murder?
as far as confounding questions, artificial gestation will be that, times orders of magnitude.
you can’t wave the issue away with a technological work-around.
russell, I feel like we’re writing at cross purposes when underneath we really agree. Or maybe you’re really addressing what I theorized Sebastian might have meant, or even what you think Sebastian might have meant without my butting in. In that case, eventually he can come along and tell us himself.
In the meantime…
You wrote: if that was the point, i don’t see how it achieves that. the fetus is not magically viable at earlier stages, it’s just not inside the woman.
“Viability” is already getting earlier and earlier, and there’s no magic about it, it’s all about technology (broadly defined). An “artificial womb” would just be carrying that progression to its “conclusion.
“The point,” if there is one, is that linking the legality of abortion to viability wouldn’t be a … viable … (sorry) … approach anymore, because viability would begin soon (?) after conception. It wouldn’t solve anything, it would just change the terms of the debate. (Which I thought I said at 12:03.)
You wrote: all of which assumes that artificial gestation environments raise no difficult issues of their own.
I certainly never assumed that, or wrote anything like it; see the last paragraph of my 12:03. Maybe Sebastian assumed it when he said technology will make “it” moot, I guess he can explain if he wants to; I thought he meant the debate would be different, not that the problem would go away.
As for me, I think that as you said, there will be questions “times orders of magnitude” (my metaphor of raft -> aircraft carrier was meant to say the same thing.
Now I think I’m bowing out. If I feeling like I have to tie myself in knots in order for russell not to misinterpret me, or me not to misinterpret russell, then it’s time to go do something else.
russell, I feel like we’re writing at cross purposes when underneath we really agree. Or maybe you’re really addressing what I theorized Sebastian might have meant, or even what you think Sebastian might have meant without my butting in. In that case, eventually he can come along and tell us himself.
In the meantime…
You wrote: if that was the point, i don’t see how it achieves that. the fetus is not magically viable at earlier stages, it’s just not inside the woman.
“Viability” is already getting earlier and earlier, and there’s no magic about it, it’s all about technology (broadly defined). An “artificial womb” would just be carrying that progression to its “conclusion.
“The point,” if there is one, is that linking the legality of abortion to viability wouldn’t be a … viable … (sorry) … approach anymore, because viability would begin soon (?) after conception. It wouldn’t solve anything, it would just change the terms of the debate. (Which I thought I said at 12:03.)
You wrote: all of which assumes that artificial gestation environments raise no difficult issues of their own.
I certainly never assumed that, or wrote anything like it; see the last paragraph of my 12:03. Maybe Sebastian assumed it when he said technology will make “it” moot, I guess he can explain if he wants to; I thought he meant the debate would be different, not that the problem would go away.
As for me, I think that as you said, there will be questions “times orders of magnitude” (my metaphor of raft -> aircraft carrier was meant to say the same thing.
Now I think I’m bowing out. If I feeling like I have to tie myself in knots in order for russell not to misinterpret me, or me not to misinterpret russell, then it’s time to go do something else.
I was addressing what I took away from Sebastian’s comment.
No worries.
I was addressing what I took away from Sebastian’s comment.
No worries.
“Viability” is already getting earlier and earlier, and there’s no magic about it, it’s all about technology (broadly defined)
There’s a reason my preference is not “viability” but “viability without massive medical intervention“. Admittedly there can be discussion about what constitutes “massive”, but pretty clearly anything resembling an artificial womb would be included.
“Viability” is already getting earlier and earlier, and there’s no magic about it, it’s all about technology (broadly defined)
There’s a reason my preference is not “viability” but “viability without massive medical intervention“. Admittedly there can be discussion about what constitutes “massive”, but pretty clearly anything resembling an artificial womb would be included.
just to reiterate my point above:
a fetus that cannot survive outside of a gestational environment, whether human or otherwise, is not viable.
kind of the same thing wj is saying here, I’m just pointing out that the scenario we’re discussing here, remarkable though it might be, is not what is meant by the word “viable”.
just to reiterate my point above:
a fetus that cannot survive outside of a gestational environment, whether human or otherwise, is not viable.
kind of the same thing wj is saying here, I’m just pointing out that the scenario we’re discussing here, remarkable though it might be, is not what is meant by the word “viable”.
From the Wikipedia article on Roe:
The Roe decision defined “viable” as “potentially able to live outside the mother’s womb, albeit with artificial aid.”[5] Justices in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.[6]
Also: The “viability” criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.[100]
From the Wikipedia article on Roe:
The Roe decision defined “viable” as “potentially able to live outside the mother’s womb, albeit with artificial aid.”[5] Justices in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.[6]
Also: The “viability” criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.[100]
The “viability” criterion is still in effect, although the point of viability has changed…
Just another of the flaws in Roe. 😉
Or, more seriously, yet another illustration of the problem with a Court composed of lawyers who are, typically, massively ignorant of technology. (Ditto, all too often, a Congress mostly similarly composed.)
The “viability” criterion is still in effect, although the point of viability has changed…
Just another of the flaws in Roe. 😉
Or, more seriously, yet another illustration of the problem with a Court composed of lawyers who are, typically, massively ignorant of technology. (Ditto, all too often, a Congress mostly similarly composed.)
i stand corrected.
not only does language change, the world to which language refers changes.
that should be cause for humility on the part of textualists, but generally is not.
i stand corrected.
not only does language change, the world to which language refers changes.
that should be cause for humility on the part of textualists, but generally is not.
Admittedly there can be discussion about what constitutes “massive”, but pretty clearly anything resembling an artificial womb would be included.
artificial wombs will happen. and they will eventually become commonplace. women will use them routinely because natural childbearing is dangerous and uncomfortable and inconveniencing. an option to skip all that and still have a child? think about how women’s lives will change if they’re not required to go through a year’s worth of body changes in order to have a child. it will fundamentally chance society, but it will happen.
some will choose to do it naturally, but that will be a luxury – to be able to incapacitate oneself for the better part of year: to miss work, to gain the weight, to endure the physical hardships. most women will opt ‘out’.
it won’t happen in any of our lifetimes, but it will happen.
Admittedly there can be discussion about what constitutes “massive”, but pretty clearly anything resembling an artificial womb would be included.
artificial wombs will happen. and they will eventually become commonplace. women will use them routinely because natural childbearing is dangerous and uncomfortable and inconveniencing. an option to skip all that and still have a child? think about how women’s lives will change if they’re not required to go through a year’s worth of body changes in order to have a child. it will fundamentally chance society, but it will happen.
some will choose to do it naturally, but that will be a luxury – to be able to incapacitate oneself for the better part of year: to miss work, to gain the weight, to endure the physical hardships. most women will opt ‘out’.
it won’t happen in any of our lifetimes, but it will happen.
For my education I read a Nature paper published last year about the (then) latest artificial womb developments, experimenting on ewes.
The paper discusses the possible application of the technology to humans. It notes that the need to remove the fetus surgically in order to maintain umbilical blood flow and keep its lungs filled with fluid will “introduce additional risk and potential long-term hysterotomy-related morbidity for the mother”.
And “Before 22–23 weeks of gestation, there are likely physiologic and technical limitations that will increase the risk and reduce the potential benefit of this therapy. Our goal is not to extend the current limits of viability…”
It seems we’re nowhere near being able to transfer a fetus to an artificial womb for much of its pre-birth development.
For my education I read a Nature paper published last year about the (then) latest artificial womb developments, experimenting on ewes.
The paper discusses the possible application of the technology to humans. It notes that the need to remove the fetus surgically in order to maintain umbilical blood flow and keep its lungs filled with fluid will “introduce additional risk and potential long-term hysterotomy-related morbidity for the mother”.
And “Before 22–23 weeks of gestation, there are likely physiologic and technical limitations that will increase the risk and reduce the potential benefit of this therapy. Our goal is not to extend the current limits of viability…”
It seems we’re nowhere near being able to transfer a fetus to an artificial womb for much of its pre-birth development.
It seems we’re nowhere near being able to transfer a fetus to an artificial womb for much of its pre-birth development.
Somehow it seems more likely that we will use them for IVF first. Thus neatly circumventing the transfer issues. (Always assuming the fetal requirements, hormonal and otherwise, can otherwise be met.)
It seems we’re nowhere near being able to transfer a fetus to an artificial womb for much of its pre-birth development.
Somehow it seems more likely that we will use them for IVF first. Thus neatly circumventing the transfer issues. (Always assuming the fetal requirements, hormonal and otherwise, can otherwise be met.)
When I read this, aside from its inherent absurdity, it struck me that it’s most unlikely more than one person in a thousand (if that) could name a single judge on the UK’s Supreme Court, or indeed the ECJ…
https://www.politico.com/magazine/story/2018/07/16/kavanaugh-supreme-court-personality-popularity-contest-219013
When I read this, aside from its inherent absurdity, it struck me that it’s most unlikely more than one person in a thousand (if that) could name a single judge on the UK’s Supreme Court, or indeed the ECJ…
https://www.politico.com/magazine/story/2018/07/16/kavanaugh-supreme-court-personality-popularity-contest-219013
artificial wombs will happen.
maybe so.
and for the folks who hold this out as a work-around for women who might otherwise terminate their pregnancies, I have questions.
how many ways will we get this wrong, before we get it right?
how many beings somewhere on the spectrum from fertilized egg to fully formed human will be FUBAR’d for life because we didn’t quite have the developmental process dialed in?
how many will not make it at all, through sheer technical cock-up?
our particular form of humans have been on the planet for, maybe, a couple hundred thousand years. we’re the product of many many many millions of years of organic development. natural trial and error. we came to be in an environment whose dynamics and interrelationships are complex and balanced. the amount we understand about all of that is beggared by what we not only don’t understand, but don’t even know is there to be understood.
pregnancy is surely a challenging task for anyone. physically, emotionally, every way you can think of.
maybe we should think about how to reduce the risk and difficulty of the process as it exists, rather than trying to make all of that go away by automating it.
maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.
just saying.
none of this is an argument from me for or against safe and legal access to abortion. it’s an argument against trying to replace the miraculous and astounding given world we were born into, with an ersatz one of our own clumsy invention.
we’re smart. we’re not that smart.
artificial wombs will happen.
maybe so.
and for the folks who hold this out as a work-around for women who might otherwise terminate their pregnancies, I have questions.
how many ways will we get this wrong, before we get it right?
how many beings somewhere on the spectrum from fertilized egg to fully formed human will be FUBAR’d for life because we didn’t quite have the developmental process dialed in?
how many will not make it at all, through sheer technical cock-up?
our particular form of humans have been on the planet for, maybe, a couple hundred thousand years. we’re the product of many many many millions of years of organic development. natural trial and error. we came to be in an environment whose dynamics and interrelationships are complex and balanced. the amount we understand about all of that is beggared by what we not only don’t understand, but don’t even know is there to be understood.
pregnancy is surely a challenging task for anyone. physically, emotionally, every way you can think of.
maybe we should think about how to reduce the risk and difficulty of the process as it exists, rather than trying to make all of that go away by automating it.
maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.
just saying.
none of this is an argument from me for or against safe and legal access to abortion. it’s an argument against trying to replace the miraculous and astounding given world we were born into, with an ersatz one of our own clumsy invention.
we’re smart. we’re not that smart.
how many ways will we get this wrong, before we get it right?
plenty.
how many will not make it at all, through sheer technical cock-up?
too many.
maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.
no argument there.
i’m just saying that it’s going to happen, eventually. technology will eventually get there. just like self-driving cars and houses on the moon. it won’t happen in our lifetimes, however.
how many ways will we get this wrong, before we get it right?
plenty.
how many will not make it at all, through sheer technical cock-up?
too many.
maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.
no argument there.
i’m just saying that it’s going to happen, eventually. technology will eventually get there. just like self-driving cars and houses on the moon. it won’t happen in our lifetimes, however.
I believe in artificial universal healthcare from artificial womb to artificial tomb.
“maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.”
Fat chance.
Anyway, only republicans/conservatives will be able to afford gestating their artificial children in artificial wombs.
Here is their hive mother, and their spawn:
https://www.balloon-juice.com/2018/07/17/nra-treason-assisting-open-thread-red-sparrowhawk/
Here is the crypto-Christian republican murdering bug mother Rebekah Mercer giving birth to our President:
https://www.youtube.com/watch?v=C_yfM1LAqP0
I believe in artificial universal healthcare from artificial womb to artificial tomb.
“maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.”
Fat chance.
Anyway, only republicans/conservatives will be able to afford gestating their artificial children in artificial wombs.
Here is their hive mother, and their spawn:
https://www.balloon-juice.com/2018/07/17/nra-treason-assisting-open-thread-red-sparrowhawk/
Here is the crypto-Christian republican murdering bug mother Rebekah Mercer giving birth to our President:
https://www.youtube.com/watch?v=C_yfM1LAqP0
Michigan Supreme Court looking at ruling a ballot initiative to end gerrymandering ub=nconstitutional:
https://slate.com/news-and-politics/2018/07/michigan-partisan-gerrymandering-voters-want-a-chance-to-end-the-practice-the-gop-state-supreme-court-might-not-let-them.html?
Michigan Supreme Court looking at ruling a ballot initiative to end gerrymandering ub=nconstitutional:
https://slate.com/news-and-politics/2018/07/michigan-partisan-gerrymandering-voters-want-a-chance-to-end-the-practice-the-gop-state-supreme-court-might-not-let-them.html?
https://www.thedailybeast.com/trumps-missing-dnc-server-is-neither-missing-nor-a-server?via=newsletter&source=DDMorning
We had at least one Soviet agent right here on Obsidian Wings previewing Soviet/mp lies about all of this before as mp himself “articulated” the lie during the “campaign” for his putsch.
https://www.thedailybeast.com/trumps-missing-dnc-server-is-neither-missing-nor-a-server?via=newsletter&source=DDMorning
We had at least one Soviet agent right here on Obsidian Wings previewing Soviet/mp lies about all of this before as mp himself “articulated” the lie during the “campaign” for his putsch.
Russell: “If the intent is more or less clear, it doesn’t go to the SCOTUS.”
Trump’s ‘Muslim Ban’. The intent was crystal clear.
Russell: “If the intent is more or less clear, it doesn’t go to the SCOTUS.”
Trump’s ‘Muslim Ban’. The intent was crystal clear.
Trump’s ‘Muslim Ban’. The intent was crystal clear.
I.e., Trump’s intent was clear. Agreed.
By “intent is more or less clear”, I mean if the intent of the language in the Constitution is clear, or at least has a settled interpretation that nobody wants to challenge at the moment.
Trump’s ‘Muslim Ban’. The intent was crystal clear.
I.e., Trump’s intent was clear. Agreed.
By “intent is more or less clear”, I mean if the intent of the language in the Constitution is clear, or at least has a settled interpretation that nobody wants to challenge at the moment.