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2101  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 12:56:19 PM
GM,
     Taking a line from one of my favorite movies, "What we have here is a failure to communicate."  In the state of nature, at least as I conceive it, it is every man for himself.  This means that there are no formalized groups, no cultural mores, and no us vs. them.  It more more me vs. "all y'all".  In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other."  All this is a smaller version of war.  England vs. France, US vs. Germany and the like. 

Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.

Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.


I agree.  But that means that the State of Nature is a construct.  It was used by philosophers to construct the need for the constructed social contract. 
2102  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 06:36:28 AM
All of that said, the chimp article is really interesting.  Thank you for sharing it.   
2103  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 06:35:29 AM
GM,
     Taking a line from one of my favorite movies, "What we have here is a failure to communicate."  In the state of nature, at least as I conceive it, it is every man for himself.  This means that there are no formalized groups, no cultural mores, and no us vs. them.  It more more me vs. "all y'all".  In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other."  All this is a smaller version of war.  England vs. France, US vs. Germany and the like. 
2104  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 09:28:27 PM
All of your examples are societies with social contracts taking advantage of those outside of their own social contract.  I was not singling out the US slave history.  i was using it as an example.  You still haven't illustrated this horrible state of nature you claim is the basis of human interaction without government.
2105  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 08:52:17 PM
"Sadistic torture for enemy captives" does not undercut the idea of a peaceful state of nature (at least not as a stand alone example).  This happens within a social contract also.  See, for example, early American history.  Slaves were born outside of a social contract, had no chance of entering the social contact, and were still abused.  That did not make the early United States a state of nature. 
2106  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 04:57:29 PM
The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.

Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.

My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.

Cute.  One difference is that gravity is viewed through the same lens.  Bodies with more mass have larger gravity, etc.  There are, in contrast, several different conceptions of the social contract.  While Hobbes's created view of the state of nature is one in which people's fates are terrible, this need not be the case (see Locke).  And, how the SON is viewed plays a major role in the desired and expected powers and actions of the government which is set up to end the state of nature. 
2107  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 10:31:44 AM
My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".

But the social contract is a creation of philosophers.  You sound like a Hobbesian, given what seems to be your view of the state of nature.  Once in the social contract, according to Hobbes, the ruler (prefered to be a strong, centralized monarch) has nearly total control of the process of goverance.  Is this something that you desire, so that we do not revert to the state of nature, in which, of course, man's experience is solitary, poor, nasty, brutish and short?
2108  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 10:26:12 AM
Glad to have BD with us.

"when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."

The inference being that electing judges is to blame?  Can we not equally say that unelected judges abusing the power which is in their hands to insert their own opinions are the unconstitutional ones?




Thank you, sir.  As I said, I believe this is one of the points that Justice Stevens is making in his book review, yes.  And your second point is one that can, indeed, be made.  As I mentioned there is a great deal of debate about the selection process of judges currently.  Again, I recommend the Bonneau and Hall book mentioned above. 
2109  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 06:28:43 AM
I think this is exactly Justice Stevens' point.  For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional. 

Your view of the social contract is incomplete.  First, there are many ideas about the genesis and structure of the social contract, what binds members to society, and the like.  Hobbes, Locke, Rousseau, and more recently John Rawles have very different views on the composition of the social contract.  Some might argue that the family and friends of the victim cede the state's criminal justice power period, with no guarantee that the family or friends are satisfied with the "tangible" justice the state decides on.  And, that could benefit death penaly proponents.  If the family of a murder victim did not want the death penalty, it is still within the descretion of the prosecutor and judge to seek and sentence the death penalty.  There is no reason that the state would seek the family's preferences on this.

The 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**
2110  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 06:20:10 AM
Thank you, DougMacG for your kind words.  Before I discuss your points, and GM's excellent offerings, I want to say that the reason that I posted the JPS piece was not because I agree with his points, but because I thought it worthy of discussion.  A book review by a former USSC justice is noteworthy, in my opinion.

That said, I AM opposed to the death penalty, so the essay worked nicely, in my opinion.  To your points 1-5:

1.  Your formulation is merely a rewording of JPS original view, placing the murdered individual or individuals' family, etc. as victims.  I disagree with this.  To discuss a different crime: I am negatively impacted by shoplifting (higher prices, etc.) but to say I am victim doesn't give the store owner his due.  Can I, or should I, file a class action suit against every shoplifter because I am impacted?  Of course not.  The store merchandise is the target, and the store owner is the victim.  Likewise, the "Butterfly Effect" should not be understood to begin beyond the murdered.  It creates a question for which there can be no answer: who is the victim of a crime?.

2.  It depends on your view of justice.  In the trailer for the new movie "Faster" there is a scene where some lady yells "I hope you kill them all."  This action is meant to be compensatory.  While this is a movie, there are plenty of people who have this feeling in American society.  But there many views of justice (see http://faculty.cua.edu/hoffmann/courses/201_1068/Plato-3%20Views%20on%20justice.pdf for a discussion of some of these). 

3.  I will concede point 3, at least mostly.  There are certainly instances where the threat of the death penalty can be a service to the law enforcement community.  However, there are those who fear that the death penalty threat also leads people to confess to crimes they did not committ in an effort to avoid being put to death.

4.  As a martial artist, I am sure you are familiar with the difference between feeling secure and being secure.  Does that make you an elitist?  It also relates to different forms of representation.  For example, should a member of Congress merely represent his consituents, or should he represent the best interest of the country, even if that means that his smaller constituency is effected negatively, at least in the short term?

5.  That is a digression, yes. 

My (admittedly hypothetical) view: let's say there is a gang member who done gang member things, which likely include murder, but who "sees the light" for whatever reason, and decides to make amends.  He dedicates his life to ending gang violence, and several local youth say that his actions prevented them for joining a gang and participating in gang activities, likely including murder.  Is this not redemption, or at the very least an effort to rectify his prior nuisance?
2111  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Gay marriage decision in Iowa has consequences for judges on: December 01, 2010, 05:51:27 AM
Your post opens a great many questions.  There is a fair amount of discussion about the judicial selection process at the state level these days.  Justice O'Connor has been speaking on this subject for years, with a view that elected judges, by definition, are not independent and therefore cannot make unbiased type of decisions.  In contrast, several people including Chris Bonneau and Melinda Gann Hall, in a book aptly called "In Defense of Judicial Elections," support the idea of an elected judiciary.  It is a hot topic at the moment. 

To your other point, it should be noted that there are those who feel as though same sex marriages allowed in one state should be recognized in the other states in the union.  This is because of the Full Faith and credit clause in Article IV of the Constitution which states:

 Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.



New rights and more rights, that sounds good.  A state court finding a new right of free health care would be an example?  

How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said:

"We hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution."
 - http://www.slideshare.net/LegalDocs/findlaw-iowa-gay-marriage-decision

Iowa voters oust justices who made same-sex marriage legal
http://www.cnn.com/2010/POLITICS/11/03/iowa.judges/index.html
2112  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: November 29, 2010, 03:33:48 PM
On the Death Sentence
December 23, 2010
John Paul Stevens

http://www.nybooks.com/articles/archives/2010/dec/23/death-sentence/?pagination=false 
2113  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: November 28, 2010, 07:10:43 PM
The idea is that if the state courts rely on the state constitution, rather than the U.S. Constitution, the SC would take a hands off approach to reviewing the decision.  It was new in 1985, in Michigan v. Long (the Court's opinion for which SDO authored), because of the prior courts decisions of the 1950's-1970's.
2114  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: November 27, 2010, 08:50:00 PM
This seems like a simple application of what was dubbed "New Judicial Federalism."  Justice SDO would be pleased, I suspect. 
2115  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Homeland Security and American Freedom on: November 14, 2010, 07:59:30 AM
THE INFLUENCE GAME: Shippers fought cargo controls
By SHARON THEIMER, Associated Press Sharon Theimer, Associated Press
Tue Nov 9, 12:56 pm ET
 
.WASHINGTON – Despite knowing for decades that terrorists could sneak bombs onto planes, the U.S. government failed to close obvious security gaps amid pressure from shipping companies fearful tighter controls would cost too much and delay deliveries.

Intelligence officials around the world narrowly thwarted an al-Qaida mail bomb plot last month, intercepting two explosive packages shipped from Yemen with UPS and FedEx.

But it was a tip from Saudi intelligence, not cargo screening, that turned up the bombs before they could take down airplanes. Company employees in Yemen were not required to X-ray the printer cartridges the explosives were hidden inside. Instead, they looked at the printers and sent them off, U.S. officials said.

The scare is prompting officials in Washington and around the world to rethink air cargo security. On Monday the Obama administration announced new cargo rules banning freight out of Yemen and Somalia. It also restricted the shipment of printer and toner cartridges weighing more than a pound on all passenger flights and some cargo flights. Overall cargo security rules were unchanged.

In Congress, the Senate Homeland Security and Governmental Affairs Committee plans a hearing Nov. 16 to look at whether changes are needed to improve air cargo security. Transportation Security Administration Administrator John Pistole has been asked to testify.

Lobbying by the multibillion-dollar freight industry has helped kill past efforts to impose tough rules.

In 2004, when the Transportation Security Administration considered requiring screening for all packages on all flights, the Cargo Airline Association downplayed a terrorist threat. It argued slowing down shipping for inspections would jeopardize the shipping industry and the world's economy.

"As a practical matter, all-cargo aircraft operators today are permitted to accept freight from all persons and entities all over the world, including unknown shippers,
precisely because of the lack of any credible threat to all-cargo aircraft," the association, whose members included FedEx, UPS and other shippers, told the agency.

The government agreed.

"TSA believes that a requirement to inspect every piece of cargo could result in an unworkable cost of more than $650 million" in the first year, the agency wrote in 2004. The government wanted security, TSA said, "without undue hardship on the affected stakeholders."

The U.S. requires all packages be screened before being loaded onto passenger flights originating in the U.S. But there's no such requirement enforced for all cargo loaded onto U.S.-bound international passenger flights or on cargo-only flights, such as UPS and FedEx planes.

Jetliner bombings in the 1970s and the explosion of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 led the U.S. to examine cargo security long before the Sept. 11, 2001, attacks on New York and Washington made counterterrorism measures a top priority.

Those efforts came in fits and starts. For example, the Federal Aviation Administration and U.S. Postal Service once had such a poor relationship that neither agency carried out their part of a mail security agreement they reached in 1979 after a mail bomb blew up on an American Airlines flight, congressional investigators reported in 1994.

In 2007, a coalition of more than a dozen business groups lobbied against requiring close inspections of packages, arguing in a letter to then-Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii, that applying the same rules to passenger baggage and air cargo would set "an unachievable standard."

Only in August, nine years after 9/11, did the U.S. require that all cargo be screened on U.S. passenger flights. That rule drew heavy lobbying from airlines, air cargo carriers and trade groups. They devoted at least $32 million last year and $28 million so far this year to lobbying in Washington on that and other matters.

The air transportation industry, meanwhile, donated at least $8.3 million to congressional candidates in the 2009-10 election cycle, split almost evenly between Democrats and Republicans, an analysis by the nonpartisan Center for Responsive Politics found.

The TSA, carrying out a 2007 law requiring the screening of all cargo on passenger planes within three years, decided that starting last August it would mandate the screening of cargo on passenger planes loaded in the United States. It said its rule wouldn't apply to cargo placed on U.S.-bound passenger flights overseas, or to

cargo-only flights.

In leaving cargo loaded onto passenger flights outside the U.S. from the August requirement, the agency said it would work with other countries to try to standardize screening requirements and apply "risk assessment" to cargo headed for the U.S.

That decision drew praise from the International Air Cargo Association, whose members include FedEx, UPS and other major shippers.

The industry has long contended that requiring the careful inspection of every package would cost too much and take too long. Its companies want to be able to screen items quickly and they want the government to bear as much of the cost as possible.

A wide range of businesses and organizations have a stake in cargo screening rules. Among those lobbying, the National Funeral Directors Association wants to make sure the requirements do not delay the shipping of human remains and that remains are treated with dignity. The Association of Zoos & Aquariums doesn't want screening to harm animals as they are transported to zoos and other wildlife institutions, or endanger the people inspecting them.

Monday's announcement of new cargo rules came after Homeland Security Secretary Janet Napolitano held a conference call last Wednesday with cargo industry giants FedEx, UPS, German-based shipper Deutsche Post DHL AG and Netherlands-based TNT. On the call, Napolitano "underscored her commitment to partnering with the shipping industry to strengthen cargo security," her agency said.

The air cargo industry isn't short of political connections. FedEx spent $19 million lobbying from January through September alone; its chief executive, Frederick W. Smith, raised campaign money for Republican President George W. Bush and President Barack Obama's 2008 GOP rival, Sen. John McCain, and has made the White House guest lists of at least three presidents: Obama, Bush and Bill Clinton.

FedEx and UPS have served on various federal agency advisory panels over the years, and the head of the Cargo Airline Association has been part of an aviation security advisory committee. Association lobbyist Gina Ronzello used to work for the U.S. Transportation Department's inspector general, with a focus on aviation issues, and was a congressional aide. A Bush administration Customs and Border Protection official, Michael Mullen, lobbied last year for the Express Association of America, whose members included FedEx, UPS, DHL and TNT.




2116  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: The Politics of Health Care on: September 14, 2010, 09:07:56 PM
BD:

Thank you for that thoughtful analysis.


Thank you to you and DougMacG for the invitation, with apologies for my inability to be a consistent participant in this forum. 
2117  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: The Politics of Health Care on: September 14, 2010, 03:22:12 PM
Guro Crafty, DougMacG, et al,
     The starting point of this article is sound, in that it is true that bills usually have separable ("severance") contents to them, in large part due to the understanding that bills can be overturned in part, but not necessarily in whole, by the federal courts.  (Sidenote: the Supreme Court, of course, disallowed the president, via the line item veto to do the same due to a violation of the "Presentment Clause" found in Article I.)  So, yes, in theory, the Supreme Court or lower federal court could, in fact, overturn the health care plan in whole, not just in part. 
     However, I am not sure that the author is thinking lucidly in much of the other portions of the article.  For example, he plays very loosely with the language of the Constitution in the article.  He says: "the feds must argue that it is necessary and essential to ObamaCare" and "the feds' oral arguments emphasizing the necessity and importance of the personal mandate" (emphasis mine).  That is NOT what the Constitution says, however.  The Constitution (Article I, section 8, clause 18) says "The Congress shall have power ... to make all Laws which shall be necessary and proper (emphasis mine).  This distinction may be small, but it is important.  "Proper" has historically been taken rather loosely, and expansively.  There has been some change in recent years, but on average, the federal government, even with recent conservative courts (as compared to the Warren Court), has most often sided with the national government in Commerce Clause cases. 
     I also think that he misunderstands the power that courts have.  Courts are weak, by design.  Alexander Hamilton wrote famously that the federal judicial branch lacked "the purse and the sword," powers granted to Congress and the executive branch, respectively.  There is no real enforcement mechanism that court's enjoy.  President Jackson once noted that "John Marshall has made his decision, now let's see him enforce it."  It is true that the federal bench has seen its powers increase in recent years, but that is a function of the powers of the federal government's increased powers, not really the bench vs. the elected branches (see for example Gerald Rosenberg's excellent book The Hollow Hope).  For all the talk of the threat of the judiciary, the fact is that, in some very real ways (appointment by the president ad Senate, salary increases by Congress, control over types of cases the Supreme Court can hear, possibility of impeachment, etc. etc.), the judiciary is not the spectre that many on both sides of the ideological spectrum think that it is. 
     Moreover, it takes enforcement of judicial decisions to make a decision become policy.  The executive branch is charged with that enforcement.  There is an appeals system in place.  The idea that a "single judge can end all that strife" is (very probably) false. 
     Furthermore, I have seen claims in recent news articles that the case discussed by the author and another filed by the Florida are "likely headed to the Supreme Court."  (Remember that , as the article notes, the initial challenge upheld the law.)  I would love to see the evidence for the claim rather than just it being asserted.  The federal district (trial courts) hear more than 300,000 cases a year.  About 60,000 of those cases are then appealled to the Circuit Courts.  Of those, the Supreme Court hears about 80 a year.  Statistically, that means that the case will likely NOT reach the Supreme Court, even it is appealled (the Supreme Court receives about 10,000 appeals a year).  It only takes four justices to hear a case, in what is called the "Rule of Four," so it might seem likely that the Supreme Court would hear the case.  However, assuming it came to Court having upheld the legislation, it seems unlikely that the liberal block would vote to take it.  It also seems unlikely that the conservative block would vote to hear it because they aren't necessarily sure how Kennedy would vote.  Many argue that he has moved "right" since O'Connor's retirement, but he also is a student of international law, much to the chagrin of many conservatives (see his death penalty jurisprudence, for example).  Therefore, he is probably not as concerned as his conservative colleagues about a "European" model of health care. This means that the conservatives would fear the judicial "seal of approval" on the national health care legislation. 
     Finally, there is a very real question about whether the Supreme Court would find the case to justiciable.  The Court has long held that cases which present a "political question," or one that is best decided by the elected branches, would not be heard by that court.  The most famous example of this is the Vietnam war, which had several legal challenges, none of which were ever heard by the Supreme Court.  It is very possible that even ideological sympathetic justices would not wish to hear the case due to the political nature of the question.  (Again, remember that as of now the first legal challenge to the law upheld the law.)  If the Supreme Court refuses to hear a case, the lower court decision would stand in that instance.
     I liked the article because it is interesting and thought provoking, but I think there are holes in the overall assertions made by the author. 
2118  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 15, 2010, 03:48:41 PM
Backtracking in the thread a bit, I want to comment on some points gone by:

Bigdog wrote: "there may be a self selection problem.  Professors don't make much money, despite the arguments to the contrary.  If may be that conservatives largely take their talents to the private sector, where the pay is better."

I agree with this point.  Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.

"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"

In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly.  Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson.  At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980.  He taught and tested only on his view.  He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page.  That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.

I wonder how well lecturer Obama presented opposing views on contested constitutional issues.  I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa.  Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.

As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...

I can only tell you that my students often try to "figure out" my politics only to say at the end of the semester that they have no idea.  

Pro-DOMA: (This is quick, so don't expect anything too high.)  In the 1960's, the federal government decided that it could mandate that states could no longer outlaw or ban interracial marriages.  Why, now, can't the federal govt. BAN same sex marriages?  

Also, professors can assign readings that cover multiple ideological POV.  

It really isn't as hard as you guys make it seem.  
2119  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 15, 2010, 06:24:24 AM
Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.

College isn't like a pre-K education where you point to a picture and say "Car.  Can you say car?  Carrrrrr."  College is a place where you go to learn how to decipher, question, apply.  How can one learn the weakness of an opposing argument without hearing it?

And your earlier point about 2+2 equaling 22 is just silly.  There are no respected mathematicians who say something like that.  There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation.  As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer. 
2120  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: July 14, 2010, 01:12:29 PM
Excellent sources.  Thank you for sharing!  I might use one or both for classes.  And see, we DO agree! 
2121  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: July 14, 2010, 11:39:32 AM
DougMacG... just know that we will agree on something someday!!!  The point I was trying make, poorly, as it turns out, was that the media have a way of waiting until sensational stories are made to report on them.. However, as has been reported widely in the wake of the BP oil gusher, there is a long history of noncompliance, incompetence, and abuses by this company.  If the media chose to make a big deal about this before the oil spill, there might not be an "after the oil spill" to report.  
2122  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 13, 2010, 06:40:23 PM
P.C.,
     The issue I had with your post was not the inherent message, it was the claim that "ANY class... or book" will poison the mind or some such.  That is the part that isn't true.  The Second Amendment Primer doesn't.  Any book by John Lott doesn't.  Any book written by Wayne LaPierre doesn't.  And neither does every single class in college. 
2123  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Media coverage of accidents on: July 13, 2010, 11:12:10 AM
The above posts reminded me of this article about media coverage of the coal mine accisnt in West Virginia a few years ago.  Although it focuses on the mining industry, I think there might be some parallels with the current coverage of the oil spill. 

http://mediacrit.com/covering-coal-mining-by-accident

Covering Coal Mining by Accident

The horrible mining accident in Sago, West Virginia again focused the news media’s attention on the treacherous work of coal mining.

At one point, in live, late night coverage, CNN’s Anderson Cooper reminded viewers that this Appalachian region mines a lot of coal, which is used to fuel many of the power plants supplying electricity to viewers around the country. (In fact, more than half of the electricity used in the U.S. comes from coal.)

As elementary as Cooper’s observation seemed, it was an important connecting of the dots between the electricity we effortlessly consume and the dangerous labor conditions of coal mining.

But, the news media have themselves to blame for our collective ignorance on the coal industry. (Imagine a reporter from Saudi Arabia feeling it necessary to tell us that this is where a lot of our oil comes from.)

A review of network and cable television news over the past four years indexed by the Vanderbilt Television News Archive suggests that the news tells us about coal mining literally by accident.

• In 2005, national television news carried a total of four reports about coal mining, including a Fox story on a deadly China coal mine flood, and a CNN “Then and Now” story on the 2002 rescue of nine trapped coal miners in Pennsylvania—a story CNN liked so much they broadcast it twice. An exception to the accident-related coverage was an ABC News package and a full Nightline report on coal’s comeback as an energy source.

• It was more coverage by accident in 2004, with two reports for the year, covering mine explosions in China and Siberia.

• In 2003, the TV networks did a few reports on trapped miners in Russia, and another piece recalling the Pennsylvania mine rescue of 2002.

• Coverage of the Pennsylvania Quecreek Mine disaster and rescue accounted for nearly all of the coal mining-related reports of 2002. Here was the story so good it seemed like it came from Hollywood (and eventually was sold there). A total of 43 national TV news reports, most in just a few days in late July and early August, gave us wall-to-wall coverage of nine miners rescued from a flooded mine 240 feet underground.

Editors might argue that there is no “peg” for news about coal mining unless there is an accident involved.

Yet accidental coverage tells only part of the story. The news media habitually jumps from accident to accident, and misses disturbing patterns that could be the basis for a different kind of story.

First, The United Mineworkers of America (UMWA) union charged that the U.S. Department of Labor’s Mine Safety & Health Administration (MSHA)—a regulatory agency whose top ranks are staffed by former coal industry officials—is lax in enforcing Mine Act safety violations, and doesn’t have sufficient manpower to properly inspect the nation’s 1,400 mines.

Recent accidents illustrate the problem. In the Quecreek incident, it was later discovered that the workers had been supplied with faulty maps that led them to accidentally drill into flooded, abandoned mine tunnels. In Sago, as journalists quickly discovered after the disaster, the mining company had a list of more than 200 health and safety violations last year, including several that the company knew about but didn’t fix. Other mining accidents in recent years illustrate the same situation of preexisting safety problems gone uncorrected.

Second, the mining industry likes to point out the declining fatality rate in mining – 28 in 2004, compared to 133 in 1980, and more than 1,000 annually in years before the 1940s. But, the industry (as well as the industry-friendly MSHA) have ignored miners’ requests to reduce unsafe levels of coal dust, which is both a hazardous explosive in the mine and dangerous to breathe—more than 1,000 miners a year die from black lung disease.

As the United States steps up coal production, let’s start purposefully telling more stories about coal and how it is produced. The big arguments for coal are that it’s our coal, and it’s cheaper than other forms of energy. But, we need to start a public discussion about all of coal’s costs – to the land and water where it’s mined, to the atmosphere where it’s burned, and to the workers who risk their health and lives to dig it up.

2124  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 13, 2010, 06:45:46 AM
My experience does not correspond with yours. As a student in non-elite schools, I've been subject to profs who felt their role was that of propagandist for post-modern neo-marxist dogma. As a criminal justice student, I took a class on sexual assault, and instead of actually getting useful information on the subject to enhance my skills as a law enforcement officer I got to read on how America was a "rape culture" and every sexual act between a man and a woman was an act of rape because no woman in our society could truly give consent, and any woman who thought she did was a victim of "false consciousness".

I took a class on "multicultural communication" which was nothing but a extended rant by the prof on the evils of America, western civilization and anything remotely christian, heterosexual and/or white.

In addition, I had a personal connection to an academic who was the product of a elite schools and seeking a tenure track position in academia in those school. She was utterly terrified of me dooming her career because of my line of work and political opinions. She was a wide-eyed believer in all the leftist drivel she had been immersed in since since her undergrad days.


I'm not saying that it never happens, and I too was in at least 2 classes as an undergraduate where similar teachings occured.  But I majored in history and political science, so 2 of the 30 or so classes I had to take didn't seem so bad to me.  And, I never saw anything similar to when I was in graduate school, either in the classes I took or TA'd in.  All I am saying is that I think, given all of the professors that I know, the instances are overreported (or at least overblown).  Thank you for sharing your experience.     
2125  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 04:59:30 PM
This is an interesting post.  I think I would like to read the book discussed.  I think that liberals should be careful what they ask for.  Brennan and Marshall began the call to allow (for lack of a better term) what became known as "new judicial federalism."  The conservative justices won that battle.  I think liberal justices, judges, and attorneys should have more foresight than they seem to when it comes to new ways to address judicial political use.  (And before people jump down my throat, please note that I am not advocating for this, or any, interpretation, other than what is found within the document itself.)
2126  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 04:28:10 PM

I sure do.  I see that evidence is often misconstrued and misleading.  Here are some possible ways:

1, there are many states, including the one where I reside, where there is no such thing as a "registered" Republican or Democrat.  According one source, FairVote.com, there are 17 such states, including Michigan, Missouri, Texas, Vermont, and Virginia.  All of these states have at least one university that I would consider "elite."

2, there is no definition of an "elite" university.

3, since only about 20-30 "elite" university's are discussed, that leaves several hundred that were not discussed.  I wonder about the ideological make up there, since the vast majority of college students are being educated at those types of schools.

4, just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom.

5, the generation that became "radicalized" and was teaching in 1964 is retiring or has retired.  I can virtually guarantee that in 10-20 there will be little discussion about the politics of college professors.

6, I have been on several academic job interviews, and I wasn't asked about my political preferences at any of them.

7, there may be a self selection problem.  Professors don't make much money, despite the arguments to the contrary.  If may be that conservatives largely take their talents to the private sector, where the pay is better.  

As for guns on campus, I am frustrated that there aren't more schools that recognize the right to carry.  However, public schools are beginning to allow their students to do so, and private colleges aren't bound by the Bill of Rights.  
2127  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 12, 2010, 04:08:58 PM
BD:

So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?

I didn't say there are reasonable arguments, I said that reasonable people debate.  I don't say that for mere semantical reasons.  I, personally, don't find anti-2nd amendments to be right.  I have become convinced, through my own reading, that the right is an individual one.  That does not mean that everyone feels that way.  I would rather that students, if they become convinced, become convinced because of their ideas and research than me decideing it for them. 

Here are some sources for the other side though: David T. Konig, "Arms and the Man: What Did the Right to 'Keep' Arms mean in the Early Republic?" Law and History Review, Spring 2007.

http://www.historycooperative.org/journals/lhr/22.1/forum_konig.html

2128  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!
2129  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.
2130  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. 
2131  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.”




 

2132  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. 
2133  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  
2134  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?
2135  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.
2136  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. 
2137  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. 
2138  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. 
2139  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. 
2140  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.
2141  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. 
2142  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.   
2143  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!
2144  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?
2145  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?
2146  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.

2147  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.


2148  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.   
2149  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. 
2150  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??? 
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