Gay rights

[NasstyNate]

Now that is a refreshingly honest statement on what is actually going on in cases like Obergefell. What those cases really involve is imposing how individuals Justices believe society should have progressed upon the entire country as a Constitutional mandate. They're building their utopia.

You can't use me wasting time on the internet conducting thought exercises as a stand in for justices with whom you disagree. Every one of the decisions you do not like has a long series of citations supporting their decision, as well as at least four other learned people who agree with them. And I certainly would provide much more backing if this were a brief. This is just people spit-ballin.

Of course, "how they believe society should have progressed" is a completely subjective standard untethered analytically or otherwise to the Constitution. Maybe more importantly, it is a standard that has absolutely nothing to do with legal analysis or expertise at all. And legal analysis/expertise is supposed to be what qualifies Justices for that office.

And how is an originalist or textualist view not doing the same thing? The framers did not contemplate a huge array of present day issues. Acting like you know what they thought is just as much a completely subjective standard. Even more absurd is the position taken by Scalia in the last health care case, where the intent of the law is so overwhelmingly clear that to suggest otherwise is again a completely subjective standard.

Instead, what it amounts to is those Justices making purely subjective, normative judgments about what they think society "should" be like. And they are no more experts in morality or social planning than the average voter. Which is why I think doing what they did is a horrible perversion of the proper role of the judiciary.

I do not agree with your claim here, but the history of civil rights shows they do know more than the average voter.

 

[The Human Q-Tip]

Media organizations are fully protected by the freedom of the press. My position is corporations/unions are not persons as contemplated by the speech provision of the First Amendment and therefore do not have those protections. You can go from there.

Okay. So if Rupert Murdoch wants to own and run a 24/7 hour news channel with an overt political bias and political commentary, and that channel will continue disseminating its political message right on up through election day, that's constitutionally protected because that's "the press." Rush Limbaugh getting 15 hours a week and broadcasting his opinions over the radio is likewise constitutionally protected.

But if a business, union, or incorporated advocacy group wants to purchase a 30 second ad, or print a small pamphlet, to disagree with something Murdoch or Limbaugh is saying, that's not constitutionally protected.

I cannot fathom a logical reason to assume the Framers would have intended such a distinction, and to be honest, I can't understand why so many people think that is a desireable or reasonable result in an (allegedly) free society that promotes the exchange of ideas.

But anyway, one more thing based on your statement that the First Amendment does not apply to corporations and unions, and they have no rights under that Amendment.

The lack of any First Amendment protections means that Congress could enact any law it pleases regarding restrictions on corporate speech, and they wouldn't have to even be content neutral. If Congress wanted to expressly favor certain viewpoints over others, or delegate wide authority to the FEC to engage in rulemaking to "foster ideas that advance societal fairness", the FEC could choose to clamp down on one side of an issue, but not the other.

As of now, the FEC can't do that. It must at least pretend to act in a content-neutral manner because every organization they regulate has First Amendment rights they can assert if the regulation isn't content-neutral.

But if the First Amendment no longer applies to corporations, then they have no standing to assert that their (non-existent) First Amendment rights were violated by Congress or the FEC.

 

[NasstyNate]

Okay. So if Rupert Murdoch wants to own and run a 24/7 hour news channel with an overt political bias and political commentary, and that channel will continue disseminating its political message right on up through election day, that's constitutionally protected because that's "the press." Rush Limbaugh getting 15 hours a week and broadcasting his opinions over the radio is likewise constitutionally protected.

But if a business, union, or incorporated advocacy group wants to purchase a 30 second ad, or print a small pamphlet, to disagree with something Murdoch or Limbaugh is saying, that's not constitutionally protected.

I cannot fathom a logical reason to assume the Framers would have intended such a distinction, and to be honest, I can't understand why so many people think that is a desireable or reasonable result in an (allegedly) free society that promotes the exchange of ideas.

But anyway, one more thing based on your statement that the First Amendment does not apply to corporations and unions, and they have no rights under that Amendment.

The lack of any First Amendment protections means that Congress could enact any law it pleases regarding restrictions on corporate speech, and they wouldn't have to even be content neutral. If Congress wanted to expressly favor certain viewpoints over others, or delegate wide authority to the FEC to engage in rulemaking to "foster ideas that advance societal fairness", the FEC could choose to clamp down on one side of an issue, but not the other.

As of now, the FEC can't do that. It must at least pretend to act in a content-neutral manner because every organization they regulate has First Amendment rights they can assert if the regulation isn't content-neutral.

But if the First Amendment no longer applies to corporations, then they have no standing to assert that their (non-existent) First Amendment rights were violated by Congress or the FEC.

Do you believe the framers contemplated corporations in the first Amendment right to speech? If so, do you have any citation or way to back that up?

 

[Scrote Squad]

This has to be the longest thread ever started by @tedginnjr.

By 11 pages, at least.

 

[Otsego Mar]

 

[gourimoko]

Okay. So if Rupert Murdoch wants to own and run a 24/7 hour news channel with an overt political bias and political commentary, and that channel will continue disseminating its political message right on up through election day, that's constitutionally protected because that's "the press." Rush Limbaugh getting 15 hours a week and broadcasting his opinions over the radio is likewise constitutionally protected.

Speech and press is protected; particularly political commentary.

But if a business, union, or incorporated advocacy group wants to purchase a 30 second ad, or print a small pamphlet, to disagree with something Murdoch or Limbaugh is saying, that's not constitutionally protected.

This isn't speech. This is commerce.

Purchasing ads from media outlets is regulated, and their is a public interest that such ads represent issues fairly and evenly. This is how and why the Federal Elections Commission and the Federal Communications Commission have exercised the right to regulate political advertisements for decades; and still do.

The question is not whether or not unions or corporations can launch political advertising campaigns; the question is can their doing so be reasonably regulated - to the same degree as political campaigns. Can their donations be monitored and disclosed, again, considered a reasonable regulation combat corruption.

So again, you're using the Supreme Court's interpretation of money as speech, but even then, Congress should have some reasonable ability to regulate political speech in the best interest of maintaining free and fair elections.

I cannot fathom a logical reason to assume the Framers would have intended such a distinction, and to be honest, I can't understand why so many people think that is a desireable or reasonable result in an (allegedly) free society that promotes the exchange of ideas.

This is where the strict interpretation and the channelling of the dead Framers starts to break down. You can't fathom a logical reason to assume the Framers would intend to limit television advertisements because they didn't intend to; television, radio, and other forms of communication didn't exist. Voting was nowhere near as widely practiced during the era of the Framers, as it was only enjoyed by White landowning males.

In the time of the Framers, only 1.5% of the U.S. adult population participated in the national electoral process. That number fluctuated below and slightly above 5% until the early/mid-19th century.

So, again, using the Framers as a basis of what we should do today is oxymoronic. Lincoln didn't use the Framers to recognize African-American freedom, nor did the universal suffrage movement.

In essence, it's a tired, conservative argument. The intent of the Framers? With respect to television, radio, and internet advertisements and SuperPACs? C'mon.

 

[The Human Q-Tip]

I'm breaking up your last post to me, Nate, so it doesn't get too out of hand.

You can't use me wasting time on the internet conducting thought exercises as a stand in for justices with whom you disagree.

Believe it or not, I wasn't trying to belittle or diminish your position. I actually thought you were just being upfront about something I've heard a lot of liberal scholars admit to.

Just hear me out for a second.

I graduated UVa law, and was an assistant editor of the Law Review. Because of that position, I ended up being at a lot of different lunches and receptions involving visiting jurists, professors, etc.. We got a pretty prestigious crop, and there were a lot of pretty candid conversations. That's in addition to what my ConLaw Prof taught. Additionally, I attended Federalist Society national conventions for almost two decades, and despite the conservative leanings of the organization, it was known for inviting and attracting a lot of non-conservative attendees as well because of the open intellectual environment.

My point in saying all this is that I've had a lot of occasion to hear influential legal scholars talk openly about their judicial philosophy. So, with that said....

I have heard a majority of those scholars on the left who have addressed the issue admit to exactly what you stated in your last post 9minus the "utopia" comment) -- that if they believe there is a moral/societal need for the recognition of a new Constitutional right, that it is perfectly proper for the Court to create that right if the elected branches refuse to do so. And that is true even if there is no historical or legal support for the proposition that the right was ever considered to be "fundamental", or even if the weight of historical/legal evidence is that it was affirmatively not considered a fundamental right.

The attitude expressed -- in basically these exact words -- was that if the Court doesn't enact changes the Court deem necessary or important to society, then it may not happen otherwise. Therefore it is proper for the Court to do so. Not because the conclusion is legally compelled, but simply because it is the right thing to so.

One of the most common contexts in which that POV was expressed was in discussions regarding Roe v. Wade and the determination that abortion was a fundamental right. It's the easiest example because there are shitloads of liberal, pro-abortion rights legal scholars who will admit the decision is legally indefensible, but that they support it because they like the result, and believe that abortion should be a constitutional right.

So anyway, when you said:

I am coming from a place of using the words of the Constitution as written and how I believe society should have progressed from then....

I'm basically read a perfect echo of what Justice Kennedy said, which is why I made that link:

In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0

If you accept Justice Kennedy's formulation, then the Court has given itself the moral/legal basis to recognize any "right" they deem morally desireable, because words like "liberty" and "privacy" are completely open-ended unless you consider those terms bound in at least some sense by their accepted meanings at the time of ratification.

But those justices don't deem themselves to be bound by the historical record at all, so they've got that carte blanche to add whatever new fundamental rights they deem desireable, as long as they can couch them in terms of "liberty" or "privacy", which are about as vague as get if you separate them from historical context.

 

[The Human Q-Tip]

Every one of the decisions you do not like has a long series of citations supporting their decision, as well as at least four other learned people who agree with them. And I certainly would provide much more backing if this were a brief. This is just people spit-ballin.

Look, if you recognize that it is right and proper for the Court to recognize as a fundamental right something that not only was never recognized expressly as such in the past, but in fact, is shown by the historical record to be something that people actually rejected as a right, nothing else matters. The Court has absolute free rein at that point to determine which rights it believes are fundamental.

The only "legal" part of those decisions are the citations that give the Court carte blanc to create new fundamental rights. So that's basically Griswald, Roe, and everything that comes after. Those are the citations that you and the Court could include. But the justification for the recognition of the particular fundamental right in question really just boils down to a glorified sociology paper. It has nothing to do with the Constitution at all.

I'll give you an example Lord Mar and the libertarians should like. The Court has found that there is a fundamental right to open ended, undefined "privacy", a fundamental right to an abortion based on personal control over your body, and a fundamental right to have states perform gay marriages. None of which appear anywhere in the Constitution.

Suppose someone claims that under the "privacy" right identified in Griswold, and the rights to personal autonomy in all three cases, there is a fundamental right to produce and ingest any drugs you choose as long as you do so in your own home.

I'd say that any justice who cared to could write just as convincing an argument for or against that, with the only real difference being what that Justice personally believed about drug use. Just as the decisions in all three of those other cases are based upon nothing more than the majority Justices' personal beliefs about what should or should not be permitted.

Still gotta answer your point about textualism/originalism, which I'll get to tomorrow.

 

[gourimoko]

Look, if you recognize that it is right and proper for the Court to recognize as a fundamental right something that not only was never recognized expressly as such in the past, but in fact, is shown by the historical record to be something that people actually rejected as a right, nothing else matters. The Court has absolute free rein at that point to determine which rights it believes are fundamental.

Nate, surely you see this is false, right? Especially after our previous conversation.

 

[Jordan]

This thread has made me realize how glad I am that I am not a lawyer. I wanted to go to law school after tremendous success in high school debate as well as a few college classes. I ultimately opted not to and am glad about it. @The Human Q-Tip , while I disagree with you immensely on this issue, I do envy your knowledge about each case.

 

[Bill Walton.]

This has to be the longest thread ever started by @tedginnjr.

By 11 pages, at least.

Hey and go figure its something super super gay..

 

[CleveRocks]

In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0

The framers did in fact envision a living constitution, that evolved with societal changes. And in fact the document did change with societal values, hence any ammendments at all. What the court is doing is usurping the power to determine societal change from the society, even though they are not elected and therefore not accountable to the people.

All of which I am sure Q agrees with. But I thought I would distill it down.

In my profession, start up businesses make changes without structural process control, much like the Justices have here. That actually works better to the extent the guy driving the bus is a Steven Jobs class visionary. But to survive after the visionary, they have to grow up and implement things like change control and product life cycle management, or a few unaccountable and often self appointed Jobs wanna be's can destroy a company with a few bad decisions.

 

[Tornicade]

Judges are appointed and approved by elected officials and are less prone to bribes and corruption and public opinion. this is intentional . If congress or the public does not like a supreme court ruling they can put in an amendment and the court must follow that amendment. thats the way it works.

Im not sure why anyone would advocate an election system for the surpreme court over disagreement with a ruling on their case.

Marriage is a right. it has legislation in place of protecting marital rights. such as not being able to compel a spouse to testify against the other etc.

The Supreme court doesnt just rule on the constitutions they rule on laws in relation to the constitution.
you cant just put every scenario and situation in the constitution nor pretend there is some imaginary loophole that prevents the US supreme court from Ruling on a matter.

Gay marriage was ruled protected by the constiution by the same precedent that ruled interracial marriage was allowed. the only way to outlaw gay marraige is to make it an amendment and if you dont see that as happening then perhaps the court was justified after all .

 

[The Oi]

Based on the opinions I've seen expressed outside of rcf in response to this decision, I've cemented what I always believed to be the case:

Stupid conservatives are more stupid and more dangerous than stupid liberals, and I think there's more of them.

I think there's probably a near equal amount of intelligent ones on both sides.

Carry on. Just pointint out an observation.

 

[The Human Q-Tip]

The framers did in fact envision a living constitution, that evolved with societal changes. And in fact the document did change with societal values, hence any ammendments at all.

Obviously, the Framers knew they could not predict everything. That's why they drafted only a Constitution, not detailed, immutable legislation.

To the extent they knew society would change, that's why they gave Congress the power to write legislation. Pass laws to deal with things as you see fit. And at the same time, they also deliberately left states with their authority to draft legislation, as well as to maintain their own state constitutions.

Now, if things changed a lot, or a sufficient majority of the people agreed that the original intent of the Constitution needed to be changed in some respect, then fine. They created a process to amend the Constitution as well. It makes perfect fucking sense, and does not require judges who think they know better than the rest of us to nudge us along as they deem appropriate.

One of the greatest frauds perpetrated in public debate is the disingenuous, asinine argument that holding the Constitution and Amendments to their original intent, means that society is frozen in time and cannot adapt. The entire point of the legislative process is to give Congress and the states the power to adapt. The entire point of the Amendment process is to give the nation as a whole the ability to make "big" changes that legislation cannot address. All of that permits the nation to evolve and change as necessary in response to a changing world.

The idea that change and adaptation cannot happen unless Justices usurp the Amendment process
is absurd.

But here is the real issue that underlies all these discussions. There are times when a substantial number of people, maybe even a majority, believes that the Constitution should be changed in some way. Maybe to add a new individual right, or to give Congress a power it didn't already have. The problem is that amending the Constitution is very difficult because it requires a super-majority. Not only must two-thirds of each House of Congress approve the proposed Amendment, but three-quarters of the states must approve it as well.

Now, given how strongly opinions are divided in this country, it is very unlikely that a truly controversial Amendment is going to be ratified. So, because the people who favor changing the Constitution know that they cannot do so via Amendment, they believe that the Court should not just interpret without bias, but deliberately change the meaning of it. Those people believe that only by the Court assuming that function can the change they desire get passed what they see as "gridlock".

And whatever someone else here may want to claim, I have run into plenty of liberal/left-wing legal scholars who will flatly admit that. And if anyone knows the history of how Roe v. Wade came to be, that's inarguable.