Gay rights

[Otsego Mar]

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.

They're equally stupid and none of them are intelligent and neither are you.

Gaybo

 

[The Human Q-Tip]

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?

Just to clarify, there are actually two distinct issues with campaign finance reform and corporations. The first is whether or not the First Amendment, particularly freedom of speech, applies to corporations. I clarified at the beginning your position that it did not, and I thought that makes for an interesting discussion, so that's what we're discussing.

The second issue is, even if corporations are covered by the First Amendment, whether monetary contributions equal speech. That is not the issue we are addressing. So with that cleared up....

Here's my textualist answer to your question:

1) I do not know if the Framers specifically considered corporations covered by the First Amendment or not. Corporations did exist at that time, but the Amendment doesn't mention them one way or the other.

2) The First Amendment, unlike a great many others, is not expressly limited to "the People". For example, the Second Amendment refers to the right of "the people" to keep and bear arms.

But rather than being phrased in terms of "the right of the people" (which at least would be a basis for claiming it is limited to individuals), the First Amendment is simply a flat out prohibition on the kind of laws Congress may make. "Congress shall make no law.....

The First Amendment does not contain an exception that permits Congress to ignore the "make no law" prohibition if the target of the law is a corporation, partnership, association, or anything else. It is simply stated as a flat prohibition on what Congress may do, not as a right belonging to individuals. You are trying to read an exception into the Amendment that is stated nowhere in it. So...do you have any citation to back that up?

So, as a follow up to 1), if they didn't "specifically consider" corporations as being covered by the First Amendment, it was because it was a flat prohibition on Congress acting period. They didn't need to "specifically consider" anyone.

3) To the extent you are going to claim that the absence of corporations being mentioned in the First Amendment means that they have no free speech rights, there is no textual justification for saying that media (or religious) corporations are any different. In other words, you are perfectly willing to read into the Amendment coverage for corporations, but only for part of the Amendment. Even though the text of the Amendment itself draws no such distinction at all. You're just making it up.

So, what I really can't understand is how you can know that the Framers "contemplated" corporations when it came to the press, but didn't "contemplate" them when in comes to speech. It's really odd. If they intended it to apply to one but not the other, why wouldn't they have mentioned it?

And here's that Textualist answer supplemented by some Originalism:

If you consider the text of the First Amendment to be ambiguous in terms of whether or not it covers corporations, then you'd try to discenr the original understanding of Freedom of Speech, and why/how it was valued and understood at the time. And if you do that, you can find all sorts of contemporaneous writings regarding the value of the free exchange of ideas. In other words, the Framers and those who ratified the Constitution believed that freedom of speech was a right that was of value not only to the individual speaking, but to society as a whole. Free society benefits when more ideas are heard, regardless of the source.

Therefore, it is reasonable to believe that, under the original understanding of the Constitution, Framers/ratifiers would have believed that an attempt by Congress to suppress the publication of a political pamphlet by a for-profit corporation violated the First Amendment.

At least, that's how I see it.

 

[NasstyNate]

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

Of course! I'll gladly address it in a reply.

 

[NasstyNate]

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.

I'm a lawyer. While I will not go so far to question his knowledge of these cases, I will certainly say that his representation of them to the layreader has been awfully selective to support his argument (to the point of misrepresenting them) or straight up incorrect.

 

[The Human Q-Tip]

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.

Nobody disputes that. The question is what when a Court is faced with a scenario or situation not expressly stated in the Constitution (which is pretty much every case), on what basis do they decide what the Constitution means? So here's a couple of examples.

Famous free speech case involving the burning of the American flag. Constitution is completely silent on the right to burn a flag, so does that mean it's not protected?

No. You look at what the claimed right is -- freedom of speech -- and try to determine what the understanding of that concept was at the time the Constitution was written and ratified. And if you do that, you'll see that burning people in effigy was a fairly common form of political protest. That the revolutionaries did similar things as well. So, a majority of the Court concluded that the principle of free speech as it was understood at the time of ratification, would have recognized flag-burning as political speech protected under the First Amendment.

The most common modern scenario we see today involve technological innovations. Again, a really obvious one radio/television/internet, and "snooping" technology like parabolic microphones. None of which existed in the past, so how do we handle them?

As to the former, the Court considers those all modes of communication, and therefore subject to First Amendment protection. So the same principles that applied to actual speaking and the writing of books/pamphlets in the 18th century would apply to communications on radio/tv/internet.

On the parabolic microphone issue, the Court has basically held that the principle of the 4th Amendment is that the limitation on the ability of the government to know what is going on in your home without a warrant should remain constant. So, if you are stupid enough to yell something loudly with open windows that people on the street could have heard in the 18th century, then a cop in the 21st century standing on the street is permitted to hear the same yelling, without a warrant.

BUT, if that 21st century cop is using a parabolic microphone that enables him to pickup even quiet conversations that someone is having within their home, that is a level of intrusiveness much greater than what a private citizen would have been subject to in their own home, without a warrant, in the 18th century. So, a cop who wants to use a parabolic to listen to you in your home in the 21st century needs a warrant, as required by the 4th Amendment.

Those are examples of protecting privacy interests that were recognized and acknowledged back in the 18th century. The interests -- being able to communicate without suppression, being able to speak in your home without being monitored by the state -- have not changed and are not new. All that has happened is that existing, recognized Constitutional rights have been appied to new technology.

That is fundamentally different from inventing completely new rights and interests that were never recognized in the past.

 

[The Human Q-Tip]

I'm a lawyer. While I will not go so far to question his knowledge of these cases, I will certainly say that his representation of them to the layreader has been awfully selective to support his argument (to the point of misrepresenting them) or straight up incorrect.

Well, please pick one and be specific.

 

[gourimoko]

I'm a lawyer. While I will not go so far to question his knowledge of these cases, I will certainly say that his representation of them to the layreader has been awfully selective to support his argument (to the point of misrepresenting them) or straight up incorrect.

This.

 

[The Human Q-Tip]

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.

Finally, we get here....

Obviously, there are a whole bunch of times when the Court needs to "fill gaps", because the Constitution just isn't sufficiently specific, or because technology has advanced. To a textualist or originalist, the goal is to try to figure out what was intended at the time. Identify the specific principle including whatever qualifications existed as best you can, and apply it. But your baseline is always the intent of the Framers/ratifiers.

Sometimes, that is extraordinarily difficult, and different reasonable people can come to different conclusions as to what would have been the thinking about the case had it been presented at the time of ratification. Those cases can be squirrelly, and no Justice is always perfectly consistent. The closer the case, the more likely personal bias is to intrude. That's inevitable..

But then you get to the cases where the gulf between the textualists/Originalists and the "activists" (for want of a better term) most clearly appears. And that's in those cases where both sides agree regarding how the case would have been viewed by those who ratified the Constitution or Amendment in question.

So...I don't believe that any honest person would claim that the 1870's ratifiers of the 14th Amendment would believe that it 1) guaranteed a right to an abortion, or 2) mandated that states recognize gay marriages. Had you presented them with either of those scenarios, they'd have laughed in your face and accused you of having a joke at their expense. They'd say that anyone who argued that would be covered is misrepresenting their understanding of what was enacted.

Now to me and other originalists, that should remain the meaning of the Constitution unless it is changed by Amendment.

But activists believe that we living now should not be bound by their understanding of the Constitution, even in those situations where it is clear , but rather should be free to contradict that understanding because we have evolved morally or come to a "different understanding".

Or if you want a hypothetical to make the point more clear, take slavery.

Let's say an abolitionist Supreme Court is presented in 1854 with the question of whether or not slavery is Constitutional. An activist abolitionist would say that even though slavery was clearly recognized in the Constitution, the not being a slave is a "fundamental right" protected by the 4th Amendment, and that slavery is therefore unconstitutional. Even though everyone would acknowledge that would contradict the original understanding of the 4th Amendment at the time it was passed.

And an originalist abolitionist would say that as horrible as slavery is, it is not barred by the original understanding of the 4th Amendment, and if it is to become constitutionally barred, that must happen via the Amendment process.

 

[NasstyNate]

Just to clarify, there are actually two distinct issues with campaign finance reform and corporations. The first is whether or not the First Amendment, particularly freedom of speech, applies to corporations. I clarified at the beginning your position that it did not, and I thought that makes for an interesting discussion, so that's what we're discussing.

The second issue is, even if corporations are covered by the First Amendment, whether monetary contributions equal speech. That is not the issue we are addressing. So with that cleared up....

Here's my textualist answer to your question:

1) I do not know if the Framers specifically considered corporations covered by the First Amendment or not. Corporations did exist at that time, but the Amendment doesn't mention them one way or the other.

2) The First Amendment, unlike a great many others, is not expressly limited to "the People". For example, the Second Amendment refers to the right of "the people" to keep and bear arms.

But rather than being phrased in terms of "the right of the people" (which at least would be a basis for claiming it is limited to individuals), the First Amendment is simply a flat out prohibition on the kind of laws Congress may make. "Congress shall make no law.....

The First Amendment does not contain an exception that permits Congress to ignore the "make no law" prohibition if the target of the law is a corporation, partnership, association, or anything else. It is simply stated as a flat prohibition on what Congress may do, not as a right belonging to individuals. You are trying to read an exception into the Amendment that is stated nowhere in it. So...do you have any citation to back that up?

So, as a follow up to 1), if they didn't "specifically consider" corporations as being covered by the First Amendment, it was because it was a flat prohibition on Congress acting period. They didn't need to "specifically consider" anyone.

3) To the extent you are going to claim that the absence of corporations being mentioned in the First Amendment means that they have no free speech rights, there is no textual justification for saying that media (or religious) corporations are any different. In other words, you are perfectly willing to read into the Amendment coverage for corporations, but only for part of the Amendment. Even though the text of the Amendment itself draws no such distinction at all. You're just making it up.

So, what I really can't understand is how you can know that the Framers "contemplated" corporations when it came to the press, but didn't "contemplate" them when in comes to speech. It's really odd. If they intended it to apply to one but not the other, why wouldn't they have mentioned it?

And here's that Textualist answer supplemented by some Originalism:

If you consider the text of the First Amendment to be ambiguous in terms of whether or not it covers corporations, then you'd try to discenr the original understanding of Freedom of Speech, and why/how it was valued and understood at the time. And if you do that, you can find all sorts of contemporaneous writings regarding the value of the free exchange of ideas. In other words, the Framers and those who ratified the Constitution believed that freedom of speech was a right that was of value not only to the individual speaking, but to society as a whole. Free society benefits when more ideas are heard, regardless of the source.

Therefore, it is reasonable to believe that, under the original understanding of the Constitution, Framers/ratifiers would have believed that an attempt by Congress to suppress the publication of a political pamphlet by a for-profit corporation violated the First Amendment.

At least, that's how I see it.

Ok. This is fair and I understand your position. To summarize, it doesn't matter that the framers did not explicitly include corporations in the First Amendment. What matters is that they aimed to protect free speech, and both individuals and corporations fall under the free speech umbrella. Correct?

Connecting this conversation with Citizens United and our earlier discussion about commercial speech of corporations, the reason I think it is important to inquire about the intent of the framers is because if corporations were not contemplated, which I do not believe they were, then even if we do accept your theory that I summarized, then corporations would not have the absolute (not entirely absolute but close enough) protections of individual free speech, but a lesser right. Where do you come out on that theory?

I think my theory is correct. It is why Congress can limit and compel corporate speech in a way that would never be acceptable to individuals. The Court held so in Virginia State Pharmacy Board. But if we were to apply your line of reasoning that corporations are no different from people, why would Congress be able to limit corporate speech at all? Do you think food labeling laws are unconstitutional?

Again back to Citizens United. I anticipate your response is that we are not talking about commercial speech, but political speech, and there should be a blanket ban on said limitation. But where does that distinction come from? As you stated above - "you are making that up." Where I think the Court erred on is what @gourimoko picked up on in his post - given that corporations have lesser speech protections in every context, Congress is well within its power to narrowly tailor laws to limit corporate speech around elections in order to ensure a fair political process by delegating regulatory authority to the FEC. The same as it does to ensure a safe food and drug supply by delegating regulatory authority to the FDA. Citizens United said corporations have the same First Amendment protections as individuals under the same theory you are advancing that corporate political speech is somehow distinct, which is a completely made up right.

 

[NasstyNate]

Well, please pick one and be specific.

Already did in posts 201 and 203.

Your insistence that Citizens United was about the banning of a movie is how you misrepresent a case. You are narrowly correct that it began with the FEC banning the showing of a movie, but it snowballed into something far larger (due to Roberts' shenanigans), with the opinion making sweeping changes to both election law and how money is spent in the political process. Hence my comment about Franz Ferdinand. Which I thought was very clever.

You were just straight up wrong about Shelby County. No way around that.

 

[NasstyNate]

Finally, we get here....

Obviously, there are a whole bunch of times when the Court needs to "fill gaps", because the Constitution just isn't sufficiently specific, or because technology has advanced. To a textualist or originalist, the goal is to try to figure out what was intended at the time. Identify the specific principle including whatever qualifications existed as best you can, and apply it. But your baseline is always the intent of the Framers/ratifiers.

Sometimes, that is extraordinarily difficult, and different reasonable people can come to different conclusions as to what would have been the thinking about the case had it been presented at the time of ratification. Those cases can be squirrelly, and no Justice is always perfectly consistent. The closer the case, the more likely personal bias is to intrude. That's inevitable..

But then you get to the cases where the gulf between the textualists/Originalists and the "activists" (for want of a better term) most clearly appears. And that's in those cases where both sides agree regarding how the case would have been viewed by those who ratified the Constitution or Amendment in question.

So...I don't believe that any honest person would claim that the 1870's ratifiers of the 14th Amendment would believe that it 1) guaranteed a right to an abortion, or 2) mandated that states recognize gay marriages. Had you presented them with either of those scenarios, they'd have laughed in your face and accused you of having a joke at their expense. They'd say that anyone who argued that would be covered is misrepresenting their understanding of what was enacted.

Now to me and other originalists, that should remain the meaning of the Constitution unless it is changed by Amendment.

But activists believe that we living now should not be bound by their understanding of the Constitution, even in those situations where it is clear , but rather should be free to contradict that understanding because we have evolved morally or come to a "different understanding".

Or if you want a hypothetical to make the point more clear, take slavery.

Let's say an abolitionist Supreme Court is presented in 1854 with the question of whether or not slavery is Constitutional. An activist abolitionist would say that even though slavery was clearly recognized in the Constitution, the not being a slave is a "fundamental right" protected by the 4th Amendment, and that slavery is therefore unconstitutional. Even though everyone would acknowledge that would contradict the original understanding of the 4th Amendment at the time it was passed.

And an originalist abolitionist would say that as horrible as slavery is, it is not barred by the original understanding of the 4th Amendment, and if it is to become constitutionally barred, that must happen via the Amendment process.

See, I am very sympathetic to Originalist thinking. I wholeheartedly believe in the separation of powers and roles of government. We need a fundamental and consistent basis to draw from in society, best of which is the Constitution. And we should amend the Constitution when society determines it should go in a different direction from it.

But I think your example of slavery is very telling. I say that because people like me (I'd say I am most aligned with Ginsburg) are with you almost all of the time. But isn't it funny that charges of activist judges or pious statements that we should just let the political process play out almost always arise out of matters of civil rights? I don't think that is a coincidence. It is easy to say we should follow the slow political process, but I find that irredeemably callous when the rights of others are being trampled on at the present. And I say it is not a coincidence because we passed the 14th Amendment saying everyone must be treated equally under the law in response to what the political process had previously produced - chattel slavery of African Americans and the withholding of rights for women. So I believe the Constitution itself, through the 14th Amendment, rejects this idea of waiting for the political process to play out when it comes to the due process and equal protection of minorities. Which, ironically, is an originalist way of thinking now that I think about it.

 

[Sebastian]

Already did in posts 201 and 203.

Your insistence that Citizens United was about the banning of a movie is how you misrepresent a case. You are narrowly correct that it began with the FEC banning the showing of a movie, but it snowballed into something far larger (due to Roberts' shenanigans), with the opinion making sweeping changes to both election law and how money is spent in the political process. Hence my comment about Franz Ferdinand. Which I thought was very clever.

You were just straight up wrong about Shelby County. No way around that.

Franz Ferdinand is my second favorite Archduke.

 

[gourimoko]

See, I am very sympathetic to Originalist thinking. I wholeheartedly believe in the separation of powers and roles of government. We need a fundamental and consistent basis to draw from in society, best of which is the Constitution. And we should amend the Constitution when society determines it should go in a different direction from it.

But I think your example of slavery is very telling. I say that because people like me (I'd say I am most aligned with Ginsburg) are with you almost all of the time. But isn't it funny that charges of activist judges or pious statements that we should just let the political process play out almost always arise out of matters of civil rights? I don't think that is a coincidence. It is easy to say we should follow the slow political process, but I find that irredeemably callous when the rights of others are being trampled on at the present. And I say it is not a coincidence because we passed the 14th Amendment saying everyone must be treated equally under the law in response to what the political process had previously produced - chattel slavery of African Americans and the withholding of rights for women. So I believe the Constitution itself, through the 14th Amendment, rejects this idea of waiting for the political process to play out when it comes to the due process and equal protection of minorities. Which, ironically, is an originalist way of thinking now that I think about it.

Yep...

 

[gourimoko]

Franz Ferdinand is my second favorite Archduke.

Actually laughed out loud.. props..

 

[Jordan]

I'm a lawyer. While I will not go so far to question his knowledge of these cases, I will certainly say that his representation of them to the layreader has been awfully selective to support his argument (to the point of misrepresenting them) or straight up incorrect.

Yeah, sorry I didn't know that. My statement applies equally to you in this case. Law is just not for me and I appreciate what you guys do.