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Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 126636 times)
G M
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« Reply #200 on: June 28, 2010, 12:53:42 PM »

It's quite evident that the intent of the founders was the freedom of the press, and that it included businesses that owned such presses, and although the could not anticipate a coporate entity such as GE/NBC/MSNBC, they enjoy the same constitutional rights as a revolutionary era news sheet on a hand cranked printing press.
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Body-by-Guinness
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« Reply #201 on: June 29, 2010, 07:27:06 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?
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bigdog
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« Reply #202 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?
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Body-by-Guinness
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« Reply #203 on: June 29, 2010, 10:58:54 AM »

Quote
Much of BCRA has been overturned, in Citizens United.  Why are we talking abouth this now?

Uhm, because you brought the acronym that I'm only identifying by context up?

I don't think we are necessarily on different sides here; I'm just astounded by deconstructions that cleave out some biased information sources as "press" and others as "issue advocacy." Anyone producing a boilerplate broadsheet is the press, IMHO, and thus protected by the first among other amendments. The attempt to segregate out voices that may impede incumbency protection scams strike me as unconstitutional sleight of hand at best.
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Body-by-Guinness
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« Reply #204 on: June 29, 2010, 11:00:12 AM »

A Few More Points on McDonald

Posted by Ilya Shapiro

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause — just denying to take up the issue in light of the long line of Substantive Due Process incorporation.

Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.

The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science — the evidence I’ve seen seems to point against them — but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.

Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.

Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right — and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”
For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.

http://www.cato-at-liberty.org/2010/06/29/a-few-more-points-on-mcdonald/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29&utm_content=Google+Reader
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bigdog
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« Reply #205 on: June 29, 2010, 11:01:06 AM »

http://www.thehighroad.org/archive/index.php/t-61355.html  
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G M
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« Reply #206 on: June 29, 2010, 07:16:20 PM »


http://www.nyulawglobal.org/globalex/united_states.htm

E.  Sources for Legislative Intent
                Legal researchers may need to look beyond the enacted language of a statute to find the intent of the lawmakers in drafting the law.  Legislative history research may be used as a means of interpreting a statute.  The sources for legislative intent follow the history of the passage of the law, from introduction to committee documentation to floor debate and Presidential remarks.
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G M
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« Reply #207 on: July 01, 2010, 03:05:33 PM »

http://hotair.com/archives/2010/07/01/how-did-four-supreme-court-justices-wind-up-arguing-against-the-constitution/


Leftism trumps constitution for four.
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DougMacG
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« Reply #208 on: July 06, 2010, 10:38:04 AM »

I would like to bring over from the Kagan thread, one paragraph at a time, the 2 columns of suggested questions from George Will that nicely summarize the differences between the main schools of thought on interpreting the constitution.  Starting with the last question first, I would challenge anyone here who says they are reading only the exact words of the constitution to help us understand perhaps the most important ruling of our lifetimes, the one liberals and liberal justices (for lack of a better term) hold most dearly, the right to slaughter your young:

"In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?"
« Last Edit: July 06, 2010, 12:53:26 PM by DougMacG » Logged
Crafty_Dog
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« Reply #209 on: July 10, 2010, 10:22:32 AM »

Pasting this post by PC on the Well Armed People thread here.  This is an excellent and usually overlooked point.
=========
Woof,
 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. In other words this wasn't about protecting a citizens right to keep and bear arms at all but instead it was about protecting the United States from attack and it was put there as a benefit to the government and the states to have a armed militia.
 This poison pill that they have drilled into our heads and into every lawyer and Constitutional expert that comes out of our finest schools, has been what the enemies of freedom have hung their hat on in order to strip the Second Amendment of its power to protect citizens from tyranny. Of course the latest ruling from the Supreme Court of the United States, has worked as an antidote to lessen the effect of that poisonous idea. However, the poison is still there in every major work on the Bill of Rights and Constitutional law. So here I would like to counter these ideas with some simple facts that you might use to correct the record.
 Let's start with first things first. What was the intended purpose of the Bill of Rights to begin with? For that we can look at the preamble to the Bill of Rights. What? Never heard of that before? I wonder why? Well, here it is:

PREAMBLE
 
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine

THE Conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that futher declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent starts of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

 The second paragraph states the reason and purpose for the Bill of Rights, including the Second Amendment by the way, very plainly..."in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent starts of its institution."
 It makes it very clear that these amendments are intended to restrict the government and not to give it protections, but instead to ensure public confidence. Next, what the Second Amendment actually said before it was misconstructed and abused and rewritten by the poisonous pen of interpretation.

Second Amendment

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

 The first part is what the interpreters deem to contain the important meaning and purpose of the amendment and the last half, according to them, is just meaningless drivel. Now, anyone who's thinking hasn't been impaired by the poisonous ideas planted in all the literature about the Second Amendment would immediately recognize the first part as being a supporting statement to what follows, and they would respect the placement of commas that separate the statement from the declaration and restriction clause. What did the Preamble say? "...in order to prevent misconstruction or abuse of its powers, that futher declaratory and restrictive clauses should be added." and what does the last half of the Second Amendment say? This is the declaratory part, note the comma: "the right of the people to keep and bear arms, And the restrictive part: shall not be infringed."
 The first part that mentions the Militia as a supporting statement, is just one given reason among many as to why this declaration and restriction had its place in the Bill of Rights and it has no importance or bearing on its meaning at all, at least not if you believe the preamble. Which might explain why it is never mentioned in all those expert opinions.
 Am I really that much smarter than all all those Constitutional experts?  These people are despicable for intentionally misleading the public and undermining our rights by way of academic terrorism. This is intellectual dishonesty at its worse. 
                           P.C.
« Last Edit: July 11, 2010, 08:36:47 AM by Crafty_Dog » Logged
bigdog
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« Reply #210 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. 
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G M
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« Reply #211 on: July 12, 2010, 07:51:24 AM »

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. 

**Maybe as many as a dozen, I bet.**  rolleyes
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Crafty_Dog
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« Reply #212 on: July 12, 2010, 09:34:24 AM »

BD:

How do you teach this point?
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bigdog
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« Reply #213 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. 
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Crafty_Dog
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« Reply #214 on: July 12, 2010, 10:09:02 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?
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bigdog
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« Reply #215 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.
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Crafty_Dog
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« Reply #216 on: July 12, 2010, 10:33:36 AM »

Understood, but I seek to push further than that.  I seek to assert that there is no reasonable position to the contrary-- which would also mean that the material should be taught that way too , , ,  What do you think?

==============
Brief · July 12, 2010

The Foundation
"I want an American character, that the powers of Europe may be convinced we act for ourselves and not for others; this, in my judgment, is the only way to be respected abroad and happy at home." --George Washington



Re: The Left
"Attorney General Eric Holder and the rest of the open-borders DOJ team have invoked a 'preemption' doctrine based on the U.S. Constitution's supremacy clause to attack Arizona's anti-illegal immigration measure and oppose local and state enforcement of federal immigration laws. Never mind that the Arizona law was drafted scrupulously to comply with all federal statutes and the Constitution. You gotta love Obama's fair-weather friends of the Constitution. When a state acts to do the job the feds won't do, Obama's legal eagles run to the Founding Fathers for protection. When, on the other hand, left-wing cities across the country pass illegal alien sanctuary policies that flagrantly defy national immigration laws and hamper cross-jurisdiction enforcement, the newfound federal preemption advocates are nowhere in sight. The Obama DOJ's lawsuit against Arizona is sabotage of the people's will and the government's fundamental responsibility to provide for the common defense." --columnist Michelle Malkin

Government
"[T]o ascribe the word 'sector' to the limitless Unconstitutional and unnecessary public 'businesses' is pure subterfuge. The plunder sector is the only accurate title for what the government does outside its strict Constitutional scope. Any and all government 'stimulus' retards growth because it removes current and future wealth from its producers and gives it to central planners who are not subject to the market but to voters, a significant part of which do not pay for the bread and circuses they demand.... But if Barack Obama is trying to implode the system, and he is to succeed in doing so, how does he know that the people of this nation will not revolt? Does he assume that people will simply demand a government that makes all of their decisions for them? Perhaps he knows that this is a failing battle, but he realizes that if we manage to teeter for years on the edge, at least he will have accelerated the decline for fundamental transformation, swelling the public payroll and finances, sufficiently hobbling the private sector, weakening our morale and making people exponentially more reliant on government. Even if he cannot push all the way to totalitarian collectivism, he can still get us close enough that is almost impossible to repeal massive statism." --columnist Andrew Mellon

Liberty
"Today, Americans are stifled by big government, smothered by over-regulation, and taxed to death. Our Founding Fathers who risked everything they had -- their fortunes, their families, their lives -- to secure freedom for us would not recognize our current economic reality as anything even close to the economic liberty they worked so hard to secure. Yes, we are endowed by our Creator with the right to 'life, liberty and the pursuit of happiness'. But the government formed to protect those rights now makes it awfully hard for Americans to see economic liberty anywhere and nearly impossible to pursue financial security and the happiness that comes with it. It's time to reclaim a bit of that old time religion. It's time to secure economic liberty by cutting taxes, reducing regulations and shrinking the size of government. We've got to free individuals to use our God-given talents and imaginations to build a better life for ourselves and our children or we will eventually lose our liberty altogether." --columnist Rebecca Hagelin

Insight
"When you see that trading is done, not by consent, but by compulsion -- when you see that in order to produce, you need to obtain permission from men who produce nothing -- when you see money flowing to those who deal, not in goods, but in favors -- when you see that men get richer by graft and pull than by work, and your laws don't protect you against them, but protect them against you -- when you see corruption being rewarded and honesty becoming a self-sacrifice -- you may know that your society is doomed." --author and philosopher Ayn Rand (1905-1982)

The Gipper
"If there's any message that I wish to convey today, it is: be of good cheer. We're coming back and coming back strong. Our confidence flows not from our skill at maneuvering through political mazes, not from our ability to make the right deal at the right time, nor from any idea of playing one interest group off against the other. Unlike our opponents, who find their glee in momentary political leverage, we [nourish] our strength of purpose from a commitment to ideals that we deeply believe are not only right but that work. ... We are, and proudly so, but we are also the keepers of the flame of liberty." --Ronald Reagan

For the Record
"How might our founders have commented about [the] U.S. Supreme Court's decision upholding our rights to keep and bear arms? Justice Samuel Alito, in writing the majority opinion, said, 'Individual self-defense is the central component of the Second Amendment.' The founders would have responded 'Balderdash!' Jefferson said, 'What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.' George Mason explained, '(T)o disarm the people (is) the best and most effectual way to enslave them.' Noah Webster elaborated: 'Before a standing army can rule, the people must be disarmed. ... The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.' Contrary to Alito's assertion, the central component of the Second Amendment is to protect ourselves from U.S. Congress, not street thugs." --economist Walter E. Williams
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bigdog
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« Reply #217 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!
« Last Edit: July 12, 2010, 11:57:58 AM by bigdog » Logged
G M
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« Reply #218 on: July 12, 2010, 12:15:28 PM »

**PC makes a very strong case, of course.**


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

**I've always wondered how those that argue the above is a collective right don't think the amendment below is also just a collective and not individual right.**

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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Crafty_Dog
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« Reply #219 on: July 12, 2010, 12:30:24 PM »

BD:

So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?
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G M
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« Reply #220 on: July 12, 2010, 12:57:54 PM »

BD, see any patterns here?


http://pajamasmedia.com/blog/concealed-carry-on-campus/?singlepage=true

http://www.discoverthenetworks.org/guideDesc.asp?type=aca
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bigdog
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« Reply #221 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

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bigdog
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« Reply #222 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.  
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Body-by-Guinness
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« Reply #223 on: July 12, 2010, 04:38:54 PM »

An interesting tangent:

Calling in the World Court against the Gun Trade

Posted by Walter Olson

Just before the holiday I sent off to Encounter Books the manuscript of my next book, tentatively titled Schools for Misrule: Law Schools and an Overlawyered America. One of the themes the book explores is how, after years of arguing that courts should read the U.S. Constitution as requiring the adoption of the liberal policy agenda of the moment (welfare rights, free health care, or whatever), cutting-edge law school thinking now promotes the idea that international human rights law requires the adoption of that same agenda. Thus the U.S. Supreme Court ruled in San Antonio v. Rodriguez (1973) and Milliken v. Bradley (1974) that the U.S. Constitution does not mandate (respectively) “Robin Hood” school finance redistribution and school busing across district lines; now it’s argued that both decisions need to be revisited and overturned as contrary to (ever-evolving) conceptions of international human rights. Similarly, there are said to be internationally recognized rights to government-provided housing, day care, and even (at least in Europe) tourism.

These notions are at odds with longstanding ideas of sovereignty and national independence, as held by (among many others) the Founders of this Republic. That they could also pose more direct dangers to individual liberty is suggested by a news item that drew only passing attention a few weeks ago: Chicago Mayor and long-time anti-gun advocate Richard Daley convened an assembly on global issues at which (per the Chicago Sun-Times) he “convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.” According to another local news report, Daley “said American gun manufacturers should be held responsible in the World Court, since American-made guns are used in violent crime elsewhere in the world.” Philadelphia Mayor Michael Nutter and the mayor of Mexico City were among those endorsing the idea. David Kopel at Volokh Conspiracy has much more on the conditions that would have to be met for the World Court to assert jurisdiction.

Chicago and its mayor were in the Second Amendment spotlight most recently with the McDonald case, in which the U.S. Supreme Court struck down the city’s ultra-strict anti-gun ordinance as in violation of the Bill of Rights. But the real antecedent of Daley’s latest idea was the late-Nineties litigation ginned up by anti-gun advocates and trial lawyers on behalf of three dozen cities and counties, which mostly fared poorly in court, yet still, through sheer cost-infliction, very nearly achieved its goal of off-the-statute-books gun control through litigation). That litigation campaign was decisively rejected and stopped in its tracks by Congress in the Protection of Lawful Commerce in Arms Act, signed by then-President George W. Bush in 2005. In other words, Daley is seeking an international end run around both the Bill of Rights and the democratically expressed will of the American people. Aren’t Chicago voters tired of this yet?

http://www.cato-at-liberty.org/2010/07/12/calling-in-the-world-court-against-the-gun-trade/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29&utm_content=Google+Reader
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bigdog
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« Reply #224 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.)
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Body-by-Guinness
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« Reply #225 on: July 12, 2010, 05:36:27 PM »

Think you're right, BD, re getting bit by expediency down the line. I lived in Madison, WI when PC speech codes were all the rage, and spent a lot of time explaining to sweetness and light Nazis that their prior restraint predilections cut both ways and that they wouldn't always be the ones waving the baton. Never ceases to amaze me how many folks assume the now is as it is and ever shall be.

Also respect the ethic you bring to the classroom. Far as I'm concerned a prof is doing his or her job if you have few clues as to what the true views are. Think a classroom should be thought as a smorgasbord and profs should instill good eating methodologies and let the rest take care of itself.
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G M
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« Reply #226 on: July 13, 2010, 01:37:39 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.
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bigdog
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« Reply #227 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.     
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prentice crawford
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« Reply #228 on: July 13, 2010, 03:51:01 PM »

Pasting this post by PC on the Well Armed People thread here. this is an excellent and usually overlooked point.
=========
Woof,
 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;
Woof bigdog,
 I'm not one to nit pick but when someone states that I made a false statement I feel that it would be incumbent on them to read what I said. There is and has always been only one set of facts regarding the meaning of the Second Amendment and to render it in any other way is to distort those facts. When someone teaches these distorted ideas in the interest of fairness whether they believe the false idea or not, they are still spreading the poison none the less. It's like a math teacher saying,"Two plus two is four. However, there are many out there that say two plus two is actually 22 and there is a whole body of work done by authoritative experts that makes a compelling case for that and it's so compelling that now there is no certainty that two plus two is acually four."
 I didn't say that all professors make up the false ideas or that there wasn't another side being taught; what I said was that Liberals have poisoned the well and those poison ideas have spread throughout the body of work on the Second Amendment. Which makes it very easy for guys like Michael Bellesiles to rewrite history to fit a political agenda today.
                                                                         P.C.
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prentice crawford
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« Reply #229 on: July 13, 2010, 04:56:20 PM »

Woof,
 By the way, the words "well regulated" in context of the times as it is written in the Second Amendment, means sufficiently equipped and had nothing to do with government regulations. You see the Federal government nor the states, provided arms to the citizen militia, so how could they arm themselves if they didn't have the right to buy and keep their own? And the "free state" that's referred to means the individual states, not the national state. Who were they worried about as far as their security and freedom? The Federal government. Which is why they put this in the Constitution. Two plus two equals?
                                  P.C.
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bigdog
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« Reply #230 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. 
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prentice crawford
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« Reply #231 on: July 14, 2010, 03:43:18 PM »

Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.

 "The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms."
                                                           Federalist #46 Madison, author of the Bill of Rights and the Second Amendment

 "A well regulated militia, composed of the gentlemen, freeholders, and other free men was necessary to protect our ancient laws and liberty from the standing army. And we do each of us, for ourselves respectively, promise and engage to keep a good fire lock in proper order and to furnish ourselves as soon as possible with and always keep by us, one pound of gunpowder, four pounds of lead, one dozen gun flints and a pair of bullet moulds, with a cartouch box or powderhorn and bag for balls."
   Fairfax County Militia Plan, written by George Mason, co author with James Madison of the Second Amendment

 "Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped."
                               Federalist#29 Hamilton

                     P.C.
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Body-by-Guinness
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« Reply #232 on: July 14, 2010, 04:00:52 PM »

Nice confluences contained herein:

Cato Unbound: Does Evolution Imply Libertarianism?

Ronald Bailey | July 14, 2010

What relevance, if any, does Charles Darwin and evolutionary biology have for libertarianism? This issue is being debated this week over at Cato Unbound, by University of Northern Illinois philosopher Larry Arnhart, University of Minnesota biologist PZ Myers, Santa Fe Institute behaviorial scientist Herbert Gintis, and Rutgers University anthropologist Lionel Tiger.

Arnhart, author of Darwinian Natural Right: The Biological Ethics of Human Nature, argues that Darwin and the findings of evolutionary biology do offer support for the normative claims of classical liberalism. Arnhart defines classical liberalism as

the moral and political tradition of individual liberty understood as the right of individuals to be free from coercion so long as they respected the equal liberty of others. According to the liberals, the primary aim of government was to secure individual rights from force and fraud, which included enforcing laws of contract and private property. They thought the moral and intellectual character of human beings was properly formed not by governmental coercion, but in the natural and voluntary associations of civil society.

On my reading, Arnhart is arguing that classical liberalism better conforms to what evolutionary psychology is confirming about human nature. Societies whose institutions try to go against human nature will do less well than societies whose institutions enable the flourishing of our natures. But if that is so, why is it that truly liberal societies have emerged only in the past two centuries? After all, human nature has not changed much in the past several millennia. (My personal answer is the cultural evolution is a trial-and-error process that is slowly discovering institutions that increasingly conform better to human nature.)

So far, only Myers has responded to Arnhart arguing that he claims too much. Meyers asserts:

Evolution gives us only very general rules for our species. Adapt to the environment, or die. Change is inevitable.

Question to Myers: Just what social and economic systems better recognize and enable people to adapt and change? Possibly those based on the principles of classical liberalism?

Myers points out that all kinds of political tendencies have tried to wrap themselves in the blanket of Darwinian science, including the Revolutionary Communist Party. After all, Karl Marx famously asked Darwin if he might dedicate the first volume of Das Kapital to him. Darwin turned down the honor. I don't know what the Revolutionary Communists might be up to, but at least one prominent leftist, Princeton philosopher Peter Singer, argued that findings of evolutionary biology about human nature do put constraints on leftist social policies. Singer makes these limits explicit in his book, A Darwinian Left: Politics, Evolution, and Cooperation.

To illustrate Singer's thinking, let me share some excerpts from my 2000 interview with him on this topic:

Reason: Let me put it differently: What limits should be set on a program of egalitarianism?

Singer: Right, right. That's a different question. I think the limits ought to be essentially those that can be achieved without the kind of authoritarianism that would be incompatible with fairly liberal democratic traditions and without enormous costs and enormous loss. You have to consider whether you're going to trade off some element of the total overall prosperity of a society for the sake of having it be more egalitarian. I think those are questions of judgment. I think it's reasonable to trade off some measure of that, but obviously not enough to create a widespread hardship....

Reason: What does Darwinian thinking tell the left about why so many of the social programs they have favored have had difficulties or have failed?

Singer: It tells the left that some of them have failed because their goals were really unrealistic. For example, if their goals were to achieve equality and to combine that with a high degree of liberty--to have the state withering away, as Marx said--it's very difficult to see how you're going to be able to achieve that. If you let the state wither away, then humans' natural tendencies to form hierarchies and rank and so on are going to assert themselves. What happened specifically with the form of communism that was attempted in the Soviet Union and Eastern Europe was that people went into it with some vague idea that they could have this sort of society. But they kept needing to strengthen the power of the state rather than allow it to wither away. In that sense, the original idea would just collapse. You simply couldn't achieve it. Human beings are not such that you could expect them to work for the common good in the way that the theory assumed. The failure to understand that human nature is not as plastic as socialists often assume is a substantial part of why some of these schemes have failed.

Myers concludes his response to Arnhart by asserting:

Evolution does not incline us to classical liberalism; it is just one of many options that evolution allows.

Indeed, evolution per se may not so incline us, but as both Singer and Arnhart are arguing (I think convincingly) our human natures honed by evolution may do so.

Go here to enjoy the exchange on the social and political implications of evolutionary science.

http://reason.com/blog/2010/07/14/cato-unbound-does-evolution-im
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bigdog
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« Reply #233 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. 
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prentice crawford
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« Reply #234 on: July 15, 2010, 09:46:42 AM »

Quote
Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.
P.C.

Quote
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? bigdog

Exactly my point, it can't help but spread the ideas involved and I have no problem with valid arguments but when the so called opposing argument is baseless in fact and those posing the argument do so with a fabricated premise and rest their case on a false body of evidence that misinforms, distorts, and endeavors to hide actual facts, while writing and teaching their ideas and version of rewritten history, with the authority and shroud of legitimate academic work and knowingly do so to further a political agenda to convince future generations of Americans that they don't now, and never did have, a individual right to keep and bear arms, then I call that poison!

Quote
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. bigdog  


 Yes, it is silly and again that is my point. Those that penned the Constitution and the Bill of Rights, those that debated it, ultimately ratified it, and the papers that reported on it made a number of things crystal clear, just as clear as 2+2, and one of those things was that the citizens of the United States have the right to keep and bear arms and that it shall not be infringed. Period. Definitively. With mathematical certainty. No doubt. No deciphering. No weakness. Nothing to be discussed nor evaluated or interpretation needed. That is, until these despicable ideas were intentionally planted to thwart the original intent of the Second Amendment and they have no place, no force of argument in any legitimate text book or class on the Constitution or Bill of Rights. They can argue that in their opinion we shouldn't have the right but they can't say it doesn't exist to begin with, because that is simply a flat out lie!


 "Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people."
                                   editorial, Feb. 20, 1788
                               Pennsylvania Gazette

 "A militia when properly formed are in fact the people themselves and include all men capable of bearing arms. To preserve liberty it is essential that the whole body of people always possess arms. The mind that aims at a select militia must be influenced by a truly anti-republican principle."
                                     Ratification debate 1788
                                  Richard Henry Lee

 "As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment), in their right to keep and bear their private arms."
                                     editorial overview of ratified Bill of Rights, June 18, 1789
                                     Federal Gazette

 "The said Constitution shall be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
                                     ratification convention 1788
                                    Samuel Adams

 2+2, people. cool

                                          P.C.
« Last Edit: July 15, 2010, 05:51:15 PM by prentice crawford » Logged

DougMacG
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« Reply #235 on: July 15, 2010, 02:30:03 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...
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bigdog
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« Reply #236 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.  
« Last Edit: July 15, 2010, 08:27:18 PM by bigdog » Logged
G M
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« Reply #237 on: July 15, 2010, 04:04:31 PM »



Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes

Read more: Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes, Suggestions For Further Reading http://law.jrank.org/pages/2652/Reynolds-v-U-S-1879.html#ixzz0tmrwpX22
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prentice crawford
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« Reply #238 on: July 15, 2010, 08:02:34 PM »

Woof,
 I mentioned Bellesiles in an earlier post and for those of you that don't know about him and the short love affair he had with the press, news media, academia and the gun rights hating Left, here is one of the many rave reviews by experts that didn't bother to check any facts; www.religion-online.org/showarticle.asp?title=2209 and after http://hnn.us/articles/691.html
                      P.C.
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Body-by-Guinness
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« Reply #239 on: July 15, 2010, 08:48:44 PM »

I was in an interdisciplinary scholars undergrad program at the time Bellesiles' "research" was making news and had one of the faculty on my committee who kept waving the fake probate records in my face. I sure enjoyed it when his lack of documentation got outed.
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Body-by-Guinness
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« Reply #240 on: July 15, 2010, 09:22:08 PM »

Alan Gura is at it again:

http://saf.org/legal.action/ny.lawsuit/kachalsky_complaint.pdf
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prentice crawford
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« Reply #241 on: July 15, 2010, 09:56:23 PM »

I was in an interdisciplinary scholars undergrad program at the time Bellesiles' "research" was making news and had one of the faculty on my committee who kept waving the fake probate records in my face. I sure enjoyed it when his lack of documentation got outed.
Woof,
 Yeah, he over reached and it's a good thing he got caught at it; the problem is that there has been thousands of people like him over the years, and it continues today, they do the same thing he did but they stay below the radar by just placing a tiny drop of a lie here and there throughout their body of work. It's the old death by a thousand cuts strategy.
                                                   P.C.
Woof,
 I mentioned Bellesiles in an earlier post and for those of you that don't know about him and the short love affair he had with the press, news media, academia and the gun rights hating Left, here is one of the many rave reviews by experts that didn't bother to check any facts; www.religion-online.org/showarticle.asp?title=2209 and after http://hnn.us/articles/691.html
                      P.C.

« Last Edit: July 16, 2010, 03:59:06 AM by prentice crawford » Logged

Crafty_Dog
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« Reply #242 on: July 27, 2010, 01:28:18 AM »

http://www.daybydaycartoon.com/2010/06/27/
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Crafty_Dog
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« Reply #243 on: August 04, 2010, 08:25:11 PM »

The Virginia Obamacare Decision
What are the limits of the federal government's power? Surely, no enactment in modern times pushes the boundary further than Obamacare. In denying the Obama administration's motion to dismiss the Commonwealth of Virginia's challenge to the constitutionality of Obamacare, US District Judge Henry Hudson thus correctly recognized that the individual mandate "literally forges new ground and extends Commerce Clause powers beyond its current high water mark." Specifically, the court recognized that there is a critical difference between the federal government regulating "a voluntary decision to perform an act" and mandating "that a person ... perform an involuntary act." Interestingly, the court also invoked the notion of enumerated powers, noting that there is no "specifically articulated constitutional authority" for imposing an individual mandate.

It's very early days. A trial court decision on a motion to dismiss is hardly dispositive of squat. Having said that, however, this opinion sets a very good tone for the lengthy battles to follow.

http://www.professorbainbridge.com/professorbainbridgecom/2010/08/the-virginia-obamacare-decision.html

 

http://www.concurringopinions.com/wp-content/uploads/2010/08/virginia-opinion.pdf
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Crafty_Dog
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« Reply #244 on: August 05, 2010, 11:25:34 AM »

Although I suspect Coulter is sometimes guilty of writing while intoxicated, this one seems sound to me:

Democrats act as if the right to run across the border when you're 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.

The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.

In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay.

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court's Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves -- many of whom had roots in this country longer than a lot of white people.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: "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."

The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing the drafters even considered the amendment's effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians -- because they were subject to tribal jurisdiction, not U.S. jurisdiction.

For a hundred years, that was how it stood, with only one case adding the caveat that children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." (Other than the part about one being lawful and the other not.)

Brennan's authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, the Clement L. Bouve -- the one you've heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge -- just some guy who wrote a book.

So on one hand we have the history, the objective, the author's intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants. On the other hand, we have a random outburst by some guy named Clement -- who, I'm guessing, was too cheap to hire an American housekeeper.

Any half-wit, including Clement L. Bouve, could conjure up a raft of such "plausible distinction(s)" before breakfast. Among them: Legal immigrants have been checked for subversive ties, contagious diseases, and have some qualification to be here other than "lives within walking distance."

But most important, Americans have a right to decide, as the people of other countries do, who becomes a citizen.

Combine Justice Brennan's footnote with America's ludicrously generous welfare policies, and you end up with a bankrupt country.

Consider the story of one family of illegal immigrants described in the Spring 2005 Journal of American Physicians and Surgeons:

"Cristobal Silverio came illegally from Oxtotilan, Mexico, in 1997 and brought his wife Felipa, plus three children aged 19, 12 and 8. Felipa ... gave birth to a new daughter, her anchor baby, named Flor. Flor was premature, spent three months in the neonatal incubator, and cost San Joaquin Hospital more than $300,000. Meanwhile, (Felipa's 19-year-old daughter) Lourdes plus her illegal alien husband produced their own anchor baby, Esmeralda. Grandma Felipa created a second anchor baby, Cristian. ... The two Silverio anchor babies generate $1,000 per month in public welfare funding. Flor gets $600 per month for asthma. Healthy Cristian gets $400. Cristobal and Felipa last year earned $18,000 picking fruit. Flor and Cristian were paid $12,000 for being anchor babies."

In the Silverios' munificent new hometown of Stockton, Calif., 70 percent of the 2,300 babies born in 2003 in the San Joaquin General Hospital were anchor babies. As of this month, Stockton is $23 million in the hole.

It's bad enough to be governed by 5-4 decisions written by liberal judicial activists. In the case of "anchor babies," America is being governed by Brennan's 1982 footnote.

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DougMacG
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« Reply #245 on: August 06, 2010, 09:35:04 AM »

I regret to say that Ann Coulter makes more sense on this than our friends here who argued the opposite.  Quotes like this if actual are very persuasive: 

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
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ccp
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« Reply #246 on: August 06, 2010, 10:15:30 AM »

Perhaps I am missing it but every time I watch CNN, who bills it self as non partisan all I ever see is partisinship on this issue.  When they discuss the issue of anchor babies, we see anchors, guests, pundits one after the other say with a shit eating grin after another and snickering that it is clearly in the constitution that the babies of two illegal parents are citizens and end of story.

Then we see over and over the 4 foot tall Guatemalan working in a yard shoveling dirt breaking his back living in a room with only clothes to his name as the example of all illegals and how can anyone with a heart deny this poor man the "right" to be in America and work and struggle and dream for a better life like all of the rest of us who were all from other countries?  How could anyone but a Republican be so heartless.

No where or never have I seen them ever discuss the displacement of American workers (many of whom quite naturally sit back and collect unemployment), try to get disability, etc, discuss the benefits the illegal's children get, schooling, health in ER, free births and child care, food stamps, welfare, medicaid. 

I want to see networks start to hire bilingual illegals for far less wages than these G-D assholes on these stations and make them news anchors.  Then and only then, when it hits them in the wallet will they change their tune. 

Comon Soledad you American hating white hating jerk.  Instead of cherry picking the adorable Latino family why don't you give us the real objective picture about illegals.  And why are we not talking about illegals from all countries rather than making Latinos believe this is all about them. It isn't!!!

Comon you dumb Republican "leaders" what about all the illegals including those who overstay their visas.  Those from Asia, from Europe, From Africa, From the Carribbean.  By keeping silent about this and making it solely a "border" issue you feed the concept that it is about people who look Mexican.
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DougMacG
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« Reply #247 on: August 06, 2010, 10:28:17 AM »

As I understand it a Calif. Federal judge struck down Prop.8 which was the right of the state to define the participants in a marriage.  The judge recognized marriage as a fundamental right and therefore too heavy a burden for any other factor to justify denying anyone that right.

But the fundamental part of marriage is that one man and one woman can make this commitment to become what we call husband and wife.  Anything else is a new right, a new definition, a new tradition.

There was an important point made on another issue on the board about equal circumstance that applies and the entire progressive tax collection systems and entitlement payment systems are built on it, called equal circumstance  One taxpayer is taxed differently on his next dollar earned than another taxpayer. The reason that passes for 'equal protection' is that IF either person were in the other's circumstance, they would be treated the same as the other.

Isn't that EXACTLY the same as a gay person's opportunity to marry.  One gay man has the same right to fall in love and marry one woman and become husband and wife as anyone else does, and receive all the rights, burdens and privileges.. A former governor of New Jersey comes to mind; he had children, filed joint returns, spousal privilege, all of it.  Same with Billie-Jean King, a married woman who happened to be lesbian, and I assume thousands or millions of other people.  They didn't get all they wanted in life out of their marriage; neither do plenty of heteros, but they did have the fundamental right.  Man-woman marriage for a gay person is just as likely and accessible as other areas of established law such as the possibility of an actively practicing physician qualifying for food stamps of a homeless man being levied with a yacht tax.  It is what we call equal protection, different circumstances.

This issue will be settled once and for all just like all the other great divisive issues of our time.  It will come down to what mood Anthony Kennedy is in that day.
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Crafty_Dog
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« Reply #248 on: August 27, 2010, 02:01:58 PM »

Dear E-Team,

I have been battling the McClatchy newspapers this month over the "anchor baby" crisis in which the babies of illegal immigrants are granted automatic citizenship. Today, eight percent of babies born in the United States fall into this category.  The McClatchy newspapers branded any discussion of reforming this law "racist."  Here's what I wrote in response:

In an editorial last week, the Bee tries to smear the supporters of birthright citizenship reform as "heirs" to white supremacists of the 1920's. To make this outrageous comparison, the editors resort to the tactic of equating legitimate concern over illegal immigration with opposition to all immigration.   

Having constructed this straw man, the Bee then feels free to tar supporters of birthright citizenship reform HHas racists in the mold of Senator James Phelan who sought to ban all legal immigration from Asia. It then falsely insinuates that today's reformers would have opposed the landmark 1898 Supreme Court decision that correctly upheld the birthright citizenship of Wong Kim Ark, the child of legal – repeat, legal – Chinese immigrants and their descendants. 

I challenge the editors to cite one statement that any Congressional advocate of reform has made that even remotely suggests barring legal immigrants to our nation or denying their children all the rights of citizenship.  Indeed, I have extolled the virtues of legal immigration throughout my entire career in public office.

Unlike most nations, our immigration laws were not written to keep people out.  They were written to assure that as immigrants come to America, they come with the intention to become Americans and to fully assimilate into American society by acquiring a common language, a common culture and a common allegiance to American constitutional principles.  Illegal immigration undermines the entire process of legal immigration that makes our nation of immigrants possible.

One cannot support both legal and illegal immigration at the same time. If illegal immigration is to be rewarded with birthright citizenship, public benefits and amnesty, it becomes impossible to maintain our immigration laws and the process of assimilation that they assure.  Indeed, there is no surer way of destroying a nation of immigrants than by Balkanizing them by language, ethnicity, culture and allegiance.

The Pew Center reported this week that eight percent of babies in the United States today are born to illegal aliens and accorded instant citizenship.  The issue is whether the 14th Amendment, a Reconstruction measure to assure citizenship for the children of slaves, should continue to be used to provide automatic citizenship to babies born to parents who, under federal law, are themselves subject to immediate deportation. 

Should an illegal act be rewarded by granting a legal right?  If the answer is "yes," then how does the Bee suggest that we maintain the rule of law at all?  If we stopped enforcing the speed limit and rewarded speeders with automatic license renewal – what would be the point of keeping the signs?

In recent years, the United Kingdom, Australia, Ireland, New Zealand, France and India have all modified their birthright citizenship laws to require that one parent at least be a legal resident in order to confer birthright citizenship.  According to a June 2010 Rasmussen poll, the American people support such a reform by a margin of 58 to 33 percent.  Do the Bee's editors seriously contend that 58 percent of the nation's voters are actually white supremacists?

Abraham Lincoln once observed, "You cannot disprove Euclidian geometry by calling Euclid a liar."  At a time when our nation desperately needs a civil discussion over an issue that has profound implications for the very sovereignty of our nation, it is a shame that the Bee's editorial staff has chosen instead to hurl accusations of racism against those with whom it disagrees.   

Since my response was published, I have received a flood positive emails and phone calls supporting our position that we need to reform birthright citizenship. It is clear that American people are overwhelmingly in favor of our positions.

That is why we are in such a good position to retake the majority in the House in November.

But I still need your help.

My two opponents in November are from the far Left. In fact one is a Green Party member and the other is a Democrat they imported from Florida who is closely tied to the Progressive Democrats of America.
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Body-by-Guinness
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« Reply #249 on: September 11, 2010, 09:11:17 PM »

Commentary: When freeing criminal defendants is conservative
Marie Gryphon
September 08, 2010

Criminal defendants can't get a break from conservative judges, according to conventional wisdom. Former Chief Justice William Rehnquist reinforced the stereotype with his famously inartful remark that a "judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court's 'broad constructionist' reading of the Constitution." But Rehnquist was speaking specifically of constitutional claims at a time when expansive, policy-driven readings of the Fourth, Fifth and Sixth amendments were, for better or worse, revolutionizing police and courtroom procedures.

Not all criminal cases involve constitutional issues. When a case involves a disagreement about how to interpret a criminal law, a judge who takes a "strict constructionist" or textualist approach to interpreting the law is very likely to side with a criminal defendant. There is nothing inherently unconservative about reversing the conviction of a defendant who has not clearly violated the law. On the contrary, one of the oldest mandates of the common law is to protect the public from arbitrary prosecutions under vague statutes.

The Court's decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most "liberal" on the Court: They sided with the criminal defendants in these cases eight out of nine times. The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.

The opinions in these cases demonstrate why Scalia and Roberts, both "textualist" judges, so often side with criminal defendants. Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions. In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal. Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.

In Johnson v. U.S., Scalia rejected the government's claim that defendant Curtis Darnell Johnson was subject to an enhanced penalty under the Armed Career Criminal Act (ACCA) after pleading guilty to illegal possession of ammunition. The ACCA makes draconian sentences available to prosecutors if defendants have been convicted of three prior "violent felonies." In an opinion joined by Roberts and Kennedy, Scalia considered Black's Law Dictionary among other sources to determine that Johnson's prior conviction for battery required only "actually and intentionally touching" another person without their consent, and that mere touching was not "physical force" — a required element of a "violent felony" under the ACCA.

In Bloate v. U.S., Roberts, Scalia and Kennedy joined Justice Clarence Thomas' majority opinion holding that the Speedy Trial Act of 1974 required dismissal of the prosecution's case against Taylor James Bloate on federal drug and firearms charges because no criminal case may be delayed by more than 70 days unless the trial judge explicitly finds that further delay would serve the ends of justice. Any other interpretation of the act would render the statutory language concerning the "ends of justice" meaningless in contravention of an important canon of statutory interpretation, the Court held, unmoved by the policy argument offered by the dissent that the requirement would be pointless in practice.

In Dolan v. U.S., Roberts, joined by Scalia and Kennedy, strongly dissented from the Court's decision that a federal judge may order a criminal defendant to pay restitution to a crime victim under the Mandatory Victims Restitution Act of 1996 even after the statute's 90-day deadline had passed. Roberts wrote: "The Court appears to reason that [the act] confers the authority to add a restitution provision for at least 90 days…ut that is not what [it] says. It provides 90 days for a final determination of the victims' losses, not a free pass to impose restitution whenever the trial court gets around to it."

Certainly, the court's so-called "conservative" justices are less likely than their peers to favor criminal defendants in cases concerning constitutional limits on police activity. The Court decided three cases last term about Miranda warnings: Maryland v. Shatzer; Florida v. Powell; and Berghuis v. Smith. In each of these cases, the Court's Republican appointees favored the government's narrower view of the scope of constitutional protection. But criminal cases involving statutory interpretation show that most of these jurists readily side with criminal defendants when careful textual interpretation leads them to do so.

As another Republican-appointed justice, Pierce Butler, wrote for the Court in 1939, "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." By rigorously interpreting the words of Congress in criminal cases, Roberts, Scalia and Kennedy are protecting this important conservative legal principle.

Marie Gryphon is a senior fellow at the Manhattan Institute's Center for Legal Policy.

http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202471760830&slreturn=1&hbxlogin=1
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