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2101  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 11:26:10 AM
Sorry about the misunderstanding.  I disagree.  Teaching politics isn't the same as teaching science or math.  I think we can all agree that 2+2=4, or the correct definition of a vector (for examples).  And, while there are some facts about politics (100 senators; bicameral legislature), there are also opinions.  There is a great deal of disagreement, among reasonable and educated people, about the meaning of the 2nd Amendment.  In the same way that you wouldn't want me to teach the greatness of Warren Court (say), others wouldn't want me to teach one side of a multisided issue.  In many constitutional areas (2nd Amd; privacy; expansion of presidential powers, etc. etc.) I expose students to competing views and ask them to think about it.  What are logical fallacies, which side presents a better argument, which is most compatable with what you know of early and modern American history, and the like.  Form an argument and support it.  I can't (or won't) teach what to think.

I should add, however, that will happily discuss the decison to incorporate the 2nd to the states!
2102  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 10:28:44 AM
Thank you.

PC's point about the Preamble seems to me quite strong.  Indeed, IMHO it demolishes any idea that the Second is not an individual right.  What do you think?

I have always thought it was an individual right.
2103  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 09:54:59 AM
Guro Crafty, I teach my students that there is a debate, and I give the historical discussions around both a collective and an individual right.  We have used many original documents, including the letter from Ashcroft to the NRA-ILA from 2001 (maybe 2002, not in my office at the moment).  We also read much from the Founding period, including the Federalist and the Anti-Federalist's ideas.  (This is a general overview, since I have upper and lower level classes, and I try to alter the material taught every semester in some of the classes.)  I have also been asked by liberal and conservative student organizations to come to their meetings to discuss my personal feelings toward the 2nd Amendment, at which point I am never shy about providing being blunt about the way that I feel about it.  I will also say that I hope to develop a class dedicated to the 2nd amendment within a few years.   

I must also say that I am not the only member of the faculty at my college with a pro-2nd Amendment personal preference.  Additionally, GM, for all of your eye rolling, I can tell you that there are many faculty members at many colleges and universities who do not have "liberal" agendas, some of whom are themselves conservative, and many of whom are honest enough to inform their students of competing viewpoints.  So, no, not a dozen, but over the course of 10 or so years, probably more like a few hundred. 

There are also colleges and universities that are known as conservative.  I doubt very much that the majority of classes at Oral Roberts, James Madison, and Wheaton College, for example, are subjected to liberal ideas regarding the 2nd Amendment. 
2104  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / DOMA and States Rights on: July 12, 2010, 07:03:43 AM
http://www.newsweek.com/2010/07/09/federal-judge-rules-the-defense-of-marriage-act-unconstitutional-will-it-stick.html

Federal Judge Rules Defense of Marriage Act Unconstitutional. Will It Stick?
by Tara A. LewisJuly 09, 2010
Yesterday, Massachusetts federal district Judge Joseph Tauro declared that gay men and women recognized as married by their individual states should have access to the same federal benefits as heterosexual married couples. In doing so, he declared Article III of the federal Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman, unconstitutional. The controversial decision posits the question for both supporters and opponents of same-sex marriage of how to best support their cases and what the rulings, now under review by the Obama administration, will bring in the long term.

Tauro ruled on two cases, one filed by Massachusetts Attorney General Martha Coakley and the other by Gays & Lesbian Advocates & Defenders, a New England–based advocacy organization. His decisions apply only to Massachusetts residents. In those rulings, Tauro wrote that DOMA, enacted by Congress in 1996, violated the 10th Amendment of the Constitution by encroaching upon the state’s right to define marriage. It also violated the Constitution's equal-protection clause. In essence, since the federal law does not recognize same-sex marriage (though it's been legal in Massachusetts since 2004), Massachusetts would have to discriminate against same-sex couples by denying them the federal benefits straight married couples receive. 


Though the ruling may be a major victory for gay couples in Massachusetts, several law professors and supporters of gay-marriage are afraid the decisions will be appealed. Jack Balkin, a law professor and political and legal blogger, writes that though he supports same-sex marriage, the arguments of Tauro’s decisions are “at war with each other” in both emphasizing a need for state sovereignty but also the federal government’s requirement to regulate family life through federal programs and benefits. Law professor and blogger Steven Taylor writes that were the 10th Amendment ruling the only one, it may “have the effect of reinforcing the constitutionality of bans on same-sex marriage around the country,” by “placing public policy over marriage in the hands of the state.” He hypothesizes that the equal-protection argument will likely prove more successful in future cases, specifically those dealing with same-sex couples who move from a state that recognizes gay marriage to one that does not.



Tauro’s ruling poses a dilemma for some conservatives, who often turn to the 10th Amendment when fighting for gun rights, school prayer, and in opposing the Obama administration's health-care reform and Wall Street bailouts. In an blog post titled "Why Teapartiers Should Oppose DOMA," The Atlantic's Andrew Sullivan writes that “The right is hoist on their own federalist petard and will now have to choose whether states' rights or marriage inequality is more important to them.” Whatever happens, Tauro’s ruling is a stir of life in an otherwise slow-moving debate on same-sex marriage: activists on both sides of the issue are still waiting for a ruling in California's Proposition 8 case, which challenges the state's ban on gay marriage. The L.A. Times reports that false rumors of a verdict from U.S. District Court Chief Judge Vaughn R.Walker drew disappointed crowds to San Francisco. And as with any new decision the lasting impacts of Tauro’s ruling remain unknown (though some are speculating on the backlash).

The Obama administration is now reviewing the ruling to decide whether the federal government will file an appeal. In June, Justice Department spokeswoman Tracy Schmaler said that though President Obama wants a legislative appeal of DOMA, “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”




 

2105  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 06:57:13 AM
I can say P.C. begins his post with a broad generalization that is also false.  It is not the case that "Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind; things like saying the Second Amendment was put in the Bill of Rights to make sure the government had soldiers at the ready and now it is outdated for that purpose"  (my emphasis).

I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular. 
2106  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / NRA media in the wake of BCRA on: June 29, 2010, 11:01:06 AM
http://www.thehighroad.org/archive/index.php/t-61355.html  
2107  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Cleavin' the Kid on: June 29, 2010, 10:50:46 AM
Quote
The point of NRA's radio show was to move around BCRA.

I'm sorry, the NRA generates magazine, television, radio, and web content that all perform a reporting function, and has done so to one degree or another for the 40 years I've been a member. Not sure what the acronym you refer to is, but does the NRA's press credentials armor them against the free speech prohibitions contained in McCain/Feingold and the Disclose Act? If not, how does one cleave that baby? If so, why should we care what unconstitutional prohibitions congress bats around?

I am aware that the National Rifle Association presents ideas in those media, and has done so for the 12 or so years that I have been a lifetime member.  That does not change the fact the NRA purposefully began its own radio program so that it could act in a manner not prevented by the BCRA.  Do you remember all of the hype when it strated its radio programming.  It made announcements for months that the reason for the new format was so that BCRA did not prevent it from voicing political messages. 

Much of BCRA has been overturned, in Citizens United.  Why are we talking abouth this now?
2108  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 28, 2010, 12:37:39 PM
Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?

Well, this is kind a b.s. question from an original intentist.  The freedom of press has always meant the freedom to produce political news. 

http://caselaw.lp.findlaw.com/data/constitution/amendment01/06.html 

"Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate."  Oh, there goes the difficulty of original intent again.


Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment.
2109  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 28, 2010, 09:51:56 AM
Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?

Oh, a living Constitution argument!!!!  Pretty liberal thiniking GM. 
2110  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 28, 2010, 09:51:10 AM
Hmm, NRA publishes a lot of news so does that mean they shouldn't have been impacted by McCain Feingold and thus don't have to embrace expediency and sell out where the Disclose Act is concerned?

The point of NRA's radio show was to move around BCRA. 
2111  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 28, 2010, 06:31:27 AM
As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals.  And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?

Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.

Their was, indeed, quite clear.  That is why "press" is included in the First Amendment. 
2112  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 23, 2010, 02:19:28 PM
But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights.  Murder was only legally punishable with the creation of government.  It might have made people mad, and been a part of the "state of nature" but it was punished in the way that we think of it before the creation of the state.  Likewise, there is no reason for God to have created to right to participate in our governance without the creation of a government. 
2113  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 23, 2010, 05:57:52 AM
On which day did God create those rights?  Kings used to argue their divine right to rule, too.  That did not, of course, make it true.
2114  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 22, 2010, 02:16:47 PM
"So, according to a strict use of original intent, corporations should not have speech rights, etc."

No, by my take on original intent or literal reading, rights don't come from government.  Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others".  The rights of these groups of individuals aligned for business, political, religious, familial  or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.


"As you can see, there is nothing necessarily "leftist" about a literal interpretation."

Agree.  We have to go with the words as written.  As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written. 

One of my favorite quotes was Chief Justice Roberts during confirmation hearings.  Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:

"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That sounds like literal reading to me and Roberts is no leftist.  I think the framing of this as literal reading vs. original intent is incorrect.  I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives.  If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.

We are largely in agreement, it would seem.  As an FYI, much of my point was not directed at you, per se.   

However, there are many rights that do come from government.  The right to vote, for example (and one that you reference).  If it takes an amendment to fix it, then it must be government granted, yes?  Women, African-Americans, and 18 year olds all were given the right to vote via amendment. 
2115  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 22, 2010, 07:11:38 AM
Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter...  Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government?  Just curious.
----
It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action.  Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?

I didn't say organizations will have no such protection.

Very nice work, and you anticipated where I was going in this.  There is nothing about the Constitutional convention, the ratification of the Bill of Rights, or the ratification of the 14th Amendment that suugests that the corporations were originally intended to have the rights and liberties afforded individuals.  So, according to a stict use of original intent, corporations should not have speech rights, etc.  However, a literalist approach ("Congress shall make no law...") would certainly provide for this. 

As you can see, there is nothing necessarily "leftist" about a literal interpretation.  There is nothing inherently "rightist" about original intent.  Or vice versa.  However, as I have said elsewhere, I personally find the literalist approach to be the most convincing.  I also attempt to be consistent with the application, rather than using original intent when it suits the political preferences I have, the literalist when I think will help me reach a preferred position, etc.   
2116  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Astronomy on: June 21, 2010, 04:04:00 PM
That is amazing!  This is a very cool thread.  I used to want to be an astronomer when I was a boy.  This thread is a good reminder of why!
2117  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 21, 2010, 04:00:09 PM
As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals.  And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?
2118  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 21, 2010, 09:14:12 AM
Can we agree that corporations are/were not freed slaves?
2119  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 21, 2010, 07:36:05 AM
I would like to extend some discussion here, but begin with some material from the Immigration thread.  Recent discussion there has been about a literal reading of the Constitution vs. an originalist (or original intent of the Framers) reading of the Constitution.  If you gents will indulge me, I would like to formulate a discussion of sorts here.  It will necessitate a series of posts from me, hopefully with at least a few responses per post. 

First, if I may, based on my understanding of original intent, and many posts in the Immigration thread and in other threads here (this one and the American Creed), is it safe for me to assume that all of the supporters of original intent (body-by Guinness; Guro; GM, etc.) agree

a) that the Framers of the Bill of Rights intended to extend the rights therein (speech; bear arms; etc. etc.) to individuals, and as such that these rights should not be considered group rights (as, for example, the liberal members of the Supreme Court understand the Second Amendment).
b) that the intent of the Framers of the 14th Amendment intended to guarantee these rights to former slaves and their offspring.

2120  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Inquiring Minds on: June 18, 2010, 04:16:14 PM
Though I likely lean in an originalist direction, I'm interested in the literal camp. Word meanings change over time. For instance, understanding of term "militia" has certainly changed over the last 250 years. How does one tie a literal meaning to an evolving term? What criteria is used? Is literalism an "evolving constitution" subset or does it embrace concrete and lasting standards? Do literalists use penumbras and emanations to attach add water and stir elements to the constitution?

Inquiring minds want to know. . . .  grin

http://www.usconstitution.net/consttop_intr.html

Depends on which kind of literalist, I suppose.  Given your example, and the example given within the link, I can tell you that I am strong supporter of the Bill of Rights, including the 2nd Amendment.  I should note, futher, however, that one need not be a liberal to believe in penumbras.

By the way, see also http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/interp.html.  Posner, an example of non-originalists, is also a conservative judge. 

Also, see http://blogcritics.org/politics/article/alito-should-be-rejected-because-he/ which argues that well known liberal (tongue in cheek) Alito is a literalist.


2121  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 18, 2010, 08:20:49 AM
Agreed!

What do you make of GM's posts yesterday concerning the legislative history of the Amendment in question?  They seemed quite strong to me.

Guro (and GM),
     No need to say that they "seem strong."  They are strong.  Good finds.  However, I stick to what I have said thus far, and here is why.

There are many different, legitimate, ways to intepret the Constitution.  Some of the most common include attempting to discern the original intent (as GM has done) and literalism (as I have done).  I prefer the later for one major reason, and that it the difficulty to discern the original intent of "the framers" whether directed at the original document or the amendments that followed for the following reasons (not necessarily exhaustive):

1.  Who are the framers of the original document?  Do we include all of the people in Independence Hall?  Just the ones who actually wrote the document?  Do we include the ones who came to the convention and left?  What about the members of Congress at the time who only called a convention to alter the Articles of Confederation?
2.  Relatedly... do we include the states' ratification conventions and debates?  There are damn lot of people who play a major role in the inception of the Constitution and the amendments.  Is it reasonable to look to all of the reasons why all of these people voted to ratify?  And, what is to be made of any dissent at these conventions?  Not only will every person likely vote yes to ratify, all of those members persent who voted no likely have something add.
3.  Relatedly... in some cases, amendments were added over time.  In the most extreme example, the 27th and most recent example of amendment was ratified nearly 200 years after it was proposed.  (It has an interesting history... check it out.) 
4.  Most importantly, it is very easy to mislead the original intent.  For example, the Congressional Record has all of the floor debate held on the chambers' floor.  However, members of Congress can add to the Record information that was not presented on the floor... or even add material as though it was part of the original debate. 

This http://www.pittsburghlive.com/x/pittsburghtrib/s_320250.html is an interesting article about how original intent can be misconstrued, and it is during the modern era, so there is likely to be a better understanding of the original intent. 

Also, I would like to remind GM that debate and dissent is what brought us the Constitution and the Bill of Rights to begin with.  Debate can be constructive, if it is allowed to be.  There is nothing un-American about what I do, my intention, my words, or my interpretation of the Constitution.   
2122  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 18, 2010, 06:26:32 AM
Your ability to interpret is uncanny.  I see here that you clearly like to keep discussion civil.  I appreciate that you think quoting the Constitution is treasonous. 

**Quoting the constitution isn't treasonous, your misinterpretation and intent is.**

You have a simple and unsophisticated view of the Supreme Court's ability to just *poof* make a policy.

**You have an incorrect view of the constitutional role of the SCOTUS if you think it is supposed to make policy.**

I didn't say that the SCOTUS "is supposed" to make policy.  YOU said "If citizens rights were given to all born on our soil, per U.S. vs. Wong Kim Ark in 1898, then why would a member of an Indian tribe born within the national boundaries after that date need the Indian Citizenship Act of 1924?".  As in, the Supreme Court and NOT the Constitution gives this right.  I've said the entire time that the right is found in the Constitution. 

My intent is to read the Constitution.  It is interesting that I am the one reading the Constitution literally, and somehow I am being treasonous.  I guess I just thought the Constitution should mean what it says. 
2123  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 17, 2010, 03:24:31 PM
"That logic assumes the criteria to gain citizenship and the criteria to lose citizenship are one and the same.  Not so."

Not at all.  You are the one who made the erroneous claim that for one to be a citizen of the US, there was an implication of residency.  There isn't.  Oh, and natural born citizens don't need to take the citizenship test.  They are just granted the rights.  That's why a bunch of idiot on the left, right and middle can make claims about the Constitution without ever having read it.  And, for the record, I am a firm believer in liberty. 

I must confess that I don't understand the controversy here.  The 14th Amendment says "All persons born".  Where does the confusion come from??? 
2124  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 17, 2010, 06:46:30 AM
You meant to "bear arms" as in to carry or possess arms and not to wear tank tops I'm assuming.

You interpretation appears to be rooted in the ACLU leftist paradigm, which is essentially "Quote the constitution whenever it can be misused in such a manner as to harm America."

If citizens rights were given to all born on our soil, per U.S. vs. Wong Kim Ark in 1898, then why would a member of an Indian tribe born within the national boundaries after that date need the Indian Citizenship Act of 1924?

Your attempt to include the 2nd amendment is invalid, as to read the writings of the founding fathers made it clear that the possession of weapons by free men was the intent of that amendment. I challenge you to show me where it was the intent of the founders to reward the violation of American law with citizenship for the children of the criminal invaders.

Your ability to interpret is uncanny.  I see here that you clearly like to keep discussion civil.  I appreciate that you think quoting the Constitution is treasonous. 

You have a simple and unsophisticated view of the Supreme Court's ability to just *poof* make a policy.  Let's see if there are some reasons why there would need to be a piece of legislation following a Supreme Court decision.

1.  The Framers intended the Supreme Court to comparatively, to Congress and the President, weak.  In the words of Alexander Hamiliton (a Framer, as you know doubt are aware), the Supreme Court lacks the "purse" of Congress and the "sword" of the president.  In other words, the Supreme Court doesn't have the ability to enforce its decisions.

2.  In addition to the citizenship issue that you raise...
     A.  Despite the High Bench's decision in INS v. Chadha that "legislative vetoes" violate the presentment clause of Article I (dammit, another Constitution reference), legislative vetoes have not ceased.
     B.  There was a Supreme Court case that included the information that an island (either Long or Ellis, IIRC) was not an island.  That did not, of course, make that true.  My apologies for not having the citation.
     C.  The Brown vs. Bd. of Education decisions were supposed to integrate schools.  They didn't.  It took an act of Congress a decade later to move in a forceful way to formally end segregated education.  (Notice the similarity with the case and action you discuss). 
     D.  The 14th Amendment gives Congress, not the Supreme Court, the power to enforce it.  (See section 5). 
     E.  Speaking of original intent, and you were, you are aware that the Bill of Rights was intended to limit only the national government, right?  It was the 14th amendment that was intended to limit states.
     F.  "I challenge you to show me where it was the intent of the founders to reward the violation of American law with citizenship for the children of the criminal invaders."  I don't have to.  The founders, in this instance, have nothing to do with the question at hand.  Again, it was the 14th amendment that gave that right. 
2125  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 16, 2010, 05:29:39 PM
DougMacG... thank you!  I will try not to wail on you.  I think your interpretation is erroneous, and here is why: by your account, the citizenship rights are dependent on residency.  However, a citizen doesn't lose his or her citizenship rights if they don't live in the US.  If I reside in France, or Indonesia, or... I retain my rights as a US citizen.  I doesn't depend on state(side) residence. 
2126  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 16, 2010, 05:25:19 PM
If your interpretation of the constitution was correct, which it isn't, then there would not have been a need for the Indian Citizenship Act of 1924 .

Well, golly, there would be no need for any kind of Voting Rights Act either... but it isn't my interpretation that is faulty, it is the ability or willingness of the states to follow the law.  I would think that any conservative would like my interpretation.  It is the heart of the 2nd Amendment debate going on.  If you are right, then states CAN prohibit the right to bare arms!
2127  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 16, 2010, 08:53:23 AM
Nope, the purpose was to ensure that individual states couldn't restrict citizenship rights.  Citizenship rights are given to all those born on our soil. 
2128  DBMA Martial Arts Forum / Martial Arts Topics / Re: Criminal Justice system on: June 14, 2010, 06:34:56 AM
This is a great thread!  I do hope that all the budget cuts won't impact giving the members of the juries top dollar!!!
2129  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues - anchor babies on: June 14, 2010, 06:22:12 AM

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

A baby born to a foreign family touring the U.S. on vacation does not reside here.  You would have to read only part of that sentence above to conclude a baby of a foreign family becomes a citizen.

If the language of the amendment and its intent are not one and the same we should be actively going through the amendment process to clarify and get it right.

DougMacG... I am sorry to be "targeting" you, but the above statement isn't true.  The 14th amendment was written that way in an effort to directly address the Dred Scott opinion.  It was meant to give citizenship rights at both the national and state level, and not to allow the states to strip citizens of their rights.  Read the rest of section 1 of the amendment.  However, that can also be seen as good news for conservatives (see, for example, the right to bear arms). 
2130  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Unions on: June 10, 2010, 04:59:25 PM
Here is data on union political spending.  http://www.opensecrets.org/industries/indus.php?ind=P

While labor spends freely, it is very compared to http://www.opensecrets.org/industries/indus.php?ind=K01 or http://www.opensecrets.org/industries/indus.php?ind=F09 or heaven forbid http://www.opensecrets.org/industries/indus.php?ind=H01!
2131  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: We the Well-armed People on: June 10, 2010, 04:53:10 PM
I like John Lott... a lot.  It seems like this http://www.cnn.com/2004/WORLD/europe/09/04/russia.school/ might deserve a mention though.
2132  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Hmmmmmmm.... on: June 10, 2010, 07:46:37 AM
http://www.cnn.com/2010/US/06/10/texas.border.patrol.shooting/index.html?hpt=P1&iref=NS1
2133  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 05, 2010, 06:12:07 AM
Thanks Crafty for followup on Bush v. Gore.  Thanks and welcome to bigdog!

"My comment was meant to be tongue in cheek...  Kelo was wrongly decided..."

Whew!   I'm usually on the other side of that with people not getting my humor.  5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well.  I hope my strong reaction came across as civil. Kelo is personal for me.  I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis.  My current home of 24 years is extremely vulnerable to the Kelo rule as well.  Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation".  If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it. 

Thank you for the welcome, DogMacG.  (And thank you, Guro Crafty, for the nice introduction.)  I find Kelo interesting on many levels, not the least of which is the takings clause was the section of the BoR incorporated to the states.  Talk about stepping away from history!
2134  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 04, 2010, 07:24:28 PM
"Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom."

What part of LIVE IN ONE'S OWN HOME is not a personal freedom?

Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.  

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..."  - 4th amendment to the U.S. constitution.

In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.

In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred.  Stevens dissented.

"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"

Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.

For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!


DougMacG,
     My comment was meant to be tongue in cheek.  My apologies for not making that clear.  I do not think, however, the JPS is due as much ire as Sowell sends his way.  Kelo was wrongly decided, in my opinion, but the matter was largely addressed at the state level.  Moreover, the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest.  (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=04-108). 

     The Bill of Rights exists, as you and Sowell correctly note, as a check on the government.  A speedy trial is among those rights, and since the Framers had just come out of a war, I feel prety confident they knew what they were doing by taking steps to ensure that right. 

     The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments.  The liberals became state rights advocates and the conservatives were concerned about the individual right to vote.  Of course, the Constitution also sends the outcome of the election, in the event that no one wins a majority of the electoral votes, to the House. 

Thank you for your reply.  I liked your discussion. 
2135  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 04, 2010, 10:43:45 AM
Finally, a definitive answer to the question of who the best Supreme Court Associate Justice in history is...

http://www.scotusblog.com/2010/06/the-greatest-justice/print/

The Greatest Justice

Posted By Erin Miller On June 1, 2010 @ 2:03 pm In 30 Days of Stevens | Comments Disabled

The following essay, one of the final ones for our John Paul Stevens series, was written by Cliff Sloan [1].  Sloan clerked for Justice Stevens during the 1985 Supreme Court Term, and is now a partner at Skadden, Arps, Slate, Meagher, & Flom.

Justice John Paul Stevens is the greatest Justice in Supreme Court history.

I say this, not as hyperbole, but as a reflection of the record he has compiled in his thirty-four and one-half years on the Court.  It is a description warranted by his vast influence over wide swathes of the law, especially those that go to the heart of our constitutional democracy.  His contributions to our jurisprudence are profound, and will endure.  And I say “greatest,” not just “great,” because even our most storied Justices have not compiled a record that rivals or surpasses Justice Stevens’ record.

At the outset, one clarifying point about the frame of reference.  I am excluding Chief Justices from the comparison, for they have powers unavailable to Associate Justices.  This principle, of course, takes John Marshall, Earl Warren, and the other Chiefs out of consideration.

Justice Stevens is the greatest Justice for at least four reasons.  First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals.  He wrote two of the three seminal decisions squarely rejecting the government’s deprivation of legal rights at Guantanamo (Rasul v. Bush and Hamdan v. Rumsfeld), and he was a key member of the five-Justice majority in the third decision of this extraordinary trilogy (Boumediene v. Bush).  His galvanizing role in these cases, reaching back to his experience as a law clerk in the 1947 Term, has been well-chronicled [2].  At other times in our nation’s history, when confronted with claims of wartime authority, the Supreme Court has flinched (as in Korematsu).  Under Justice Stevens’ leadership and opinions, the Court did not flinch.  Instead, it stood powerfully for legal protections, even in a time of great national fear and anxiety. That achievement alone may establish Justice Stevens’ role as the greatest Justice.  But it is far from his only accomplishment.

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.  As Jamal Greene has detailed in these pages [3], Justice Stevens has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution.   This re-orientation is more than a matter of nomenclature or constitutional tidiness.  It has shifted the protection of personal freedom to a more secure and durable foundation.  Not coincidentally, Justice Stevens’ corresponding impact on the protection of liberty has been enormous.  To use a well-known example, Justice Stevens’ dissent in Bowers v. Hardwick, in which he disagreed with the Court’s acceptance of a criminal ban on homosexual conduct and emphasized “the abiding interest in individual liberty,” became the law of the land in Lawrence v. Texas.   Justice Kennedy’s opinion for the Court in Lawrence explicitly adopted Justice Stevens’ dissent as the basis for overruling Bowers: “Justice Stevens’ analysis  . . .  should have been controlling in Bowers and should control here.”  The remarkable seventeen-year arc of that dissent, and the more general re-fashioning of the Court’s framework from a privacy foundation to a liberty foundation, are historic triumphs.  (Full disclosure: as a law clerk, I worked with Justice Stevens on his Bowers v. Hardwick dissent.)

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance.  His memorable dissent in Bush v. Gore excoriated the Court for failing to respect the orderly process of the Florida courts.  In exactly the same vein, just a few years earlier, his often-maligned and misunderstood opinion in Clinton v. Jones stressed the orderly process of the federal courts, and rejected President Clinton’s claim that the Paula Jones lawsuit should be deferred until the expiration of his term.  No other Justice has a comparable record of leadership in vigorously enforcing the rule of law against Presidents in both parties.

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas.   Several examples tell the tale.  His decision in Chevron v. NRDC is, quite simply, the foundation of modern administrative law.  His landmark opinion on free speech and the internet, Reno v. ACLU, is justly known as “the magna carta of cyberspace.”  His 1984 decision in Sony v. Universal City Studios, holding that sale of the videocassette recorder did not constitute copyright infringement, unleashed an era of technological innovation.  His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation.  His opinion in Gonzales v. Raich, upholding Congress’s power to ban state authorization for the medicinal use of marijuana, is a seminal explication of Congress’s powers under the Commerce Clause.  Justice Stevens’ opinions often have been a beacon for state courts, as Rory Little has explained [4] in the context of prosecutorial misconduct. On virtually every legal issue, Justice Stevens’ contribution has been enormous and far-reaching.

The case for Justice Stevens as a great Justice thus seems to me overwhelming.  But the very greatest?  Recognizing inevitable subjectivity in the evaluation, I think that a comparison of Justice Stevens’ record with the record of other contenders for the honor establishes Justice Stevens’ pre-eminence.

To my mind, five other Justices plausibly could be considered for the “greatest” laurel:  Brandeis, Holmes, Brennan, Story, and the first Justice Harlan.  Although all five are great Justices, they fall short of Justice Stevens in their accomplishments and their impact on the Court.

Without a doubt, Louis Brandeis was a giant in the law.  For the purpose of this comparison, it is necessary to consider only his record as a Justice, and not to include his substantial additional contributions as the “People’s Lawyer” before he joined the Court.  Brandeis’ record on the Court is dazzling and impressive.  He was a powerful voice for vigorous First Amendment protections in the years following World War I; he stood strongly for deference to federal and state legislation at the height of the Court’s Lochner era (as in his famous deference to states as laboratories of experimentation in his New State Ice Co. v. Liebmann dissent); and he laid the groundwork for modern Fourth Amendment jurisprudence (in his Olmstead v. United States dissent, later embraced by the Court in Katz v. United States). This is unquestionably a formidable legacy.  But, even giving Brandeis’ record its due, it does not match Justice Stevens’.  Brandeis, for example, has no success comparable to Justice Stevens’ in leading the Court to enforce the rule of law in time of war.  Nor do his opinions dominate in as many areas of the law as Justice Stevens’ opinions.

With his pithy aphorisms and confident turn of mind, the iconic Oliver Wendell Holmes is the most quotable Justice.  But that does not make him the greatest.  His record in opposing the Court’s Lochner jurisprudence, including his famous dissent in Lochner itself (“the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”) is significant and enduring.  So too are his contributions to modern First Amendment doctrine (even while recognizing that  they seem to have resulted, at least to some degree, from Brandeis’ influence after he joined the Court).  But, again, Holmes’ role in leaving an actual body of law and doctrine does not rival or exceed Justice Stevens’.  Moreover, it must be recognized that Justice Holmes, in upholding forced sterilization in Buck v. Bell, wrote one of the most noxious opinions in the Court’s history.  (Holmes: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . .Three generations of imbeciles are enough.”).  It cannot be excused by saying that he was a product of his time.  Greatness in a Justice lies in transcending the mistaken pressures of presumed exigencies, as Justice Holmes did on other occasions. Holmes’ Buck v. Bell opinion is an indelible blot on his record.

The jovial architect of the Warren Court, William J. Brennan, certainly left a far-reaching legacy.  His opinions for the Court in areas such as the First Amendment (New York Times v. Sullivan), the right to vote (Baker v. Carr), congressional power (Katzenbach v. Morgan), and due process protections for recipients of government benefits (Goldberg v. Kelly) comprise an exceptional contribution.  But, impressive as his opinions are in these and other areas, Justice Brennan’s glittering record also has its limits. After the Warren Court, and particularly in his last decade on the Court, he sometimes was marginalized (even while managing occasionally to cobble together majorities). Indeed, according to Joan Biskupic’s biography of Justice Sandra Day O’Connor, Brennan quickly alienated Justice O’Connor with intemperate attacks and a differing style and approach.  Additionally, Brennan’s dominant judicial philosophy perhaps can be viewed as “five-ism” (in light of his famous statement that “you can do anything around here with five votes”).  It is a philosophy less durable than Justice Stevens’ record as the embodiment of the “rule of law” Justice — enforcing the rule of law even-handedly in time of war, against Presidents of both parties, and in a wide variety of contexts.

Joseph Story was one of our most brilliant Justices.  His three-volume Commentaries on the Constitution was the premier constitutional treatise of the nineteenth century.  Story’s output for the Court, however, was relatively sparse, although it did include his opinions in Martin v. Hunter’s Lessee and the Amistad case.  This relative paucity of major opinions was due in large part to the fact that Story served on the Marshall Court for most of his career, and John Marshall wrote almost all of the momentous opinions himself.  Some observers have concluded that Story had a significant impact on Marshall’s opinions.  But Story’s own opinions do not establish a compelling claim to the “greatest Justice” mantle.

Finally, the first Justice Harlan leaves an impressive record, if for no other reason than that he was the lone dissenter in Plessy v. Ferguson.  Harlan had other powerful dissents as well, such as in The Civil Rights Cases and in Lochner.  But he does not leave a body of work that compares to Justice Stevens’ record.

John Paul Stevens will leave the Court as the second oldest Justice to serve and as either the second or third longest-serving Justice (depending on when the Court rises this Term).  Far more important than either of these distinctions, however, is that he will leave the Court as its greatest Associate Justice.

2136  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Politics on: June 03, 2010, 11:42:42 AM
http://www.salon.com/news/louisiana_oil_spill/index.html?story=/opinion/feature/2010/06/03/redneck_riviera_open2010

This is an interesting view of President Obama's "handling" of BP. 
2137  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Reports of his demise have been greatly exaggerated on: June 03, 2010, 06:44:19 AM
http://thecaucus.blogs.nytimes.com/2010/06/02/another-candidate-another-job-offer/

The Justice Department so far has rebuffed calls for an investigation and even some Republicans, including former Attorney General Michael B. Mukasey and President George W. Bush’s top ethics lawyer, have said it would be a stretch to call the White House action regarding Mr. Sestak a crime. But the focus on such tactics undercuts the image Mr. Obama has tried to cultivate as a reformer above the usual politics.

2138  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Politics on: June 02, 2010, 12:12:10 PM
I lived throught the LBJ-McCarthy era.  My mom was an organizer within the local Dem party for McCarthy and long with future Congresswoman Bella Abzug  shocked co-chaired many meetings held at our house.  In this context as a 15 or 16 year old I met:

Allard Lowenstein (McCarthy's campaign manager);Ted Sorenson; Betty Fridan; David Halberstam; then Congressman Ed Koch; and many others.

Unlike LBJ and the liberals, BO and the Progressives (nee "liberals") are one and that same.  His failure will be their failure.  In '68 the struggle within the Dem party was between the mainstream Dems and the liberals.  The struggle was won in '72 by the lilberals with the ascencion of McGovern and the rules changes his people instituted that have lasting effect to this days.  The Democratic Party is now run by Soros's money and the Progressives.  To turn on BO would be suicidal.

Meeting Ted Sorenson would have been awesome.  He is the author of one of my favorite political books. 

On the larger point, I must confess to agree with you on this point.  I think the Democrats have learned from history (as it relates to in-party fighting over the presidential nomination), and will stand united behind President Obama.  This is not just the lesson learned in 1968, but also 1980 with the Carter/Kennedy divide. 

As for the Evan Bayh theory... doubtful.  He managed to upset a great number of Democrats in Indiana and elsewhere with the timing of his retirement from the Senate.  I am not sure the party insiders would support his run, pubically or monetarily.   
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