Politics: Onward from New Hampshire

[bilmore]

Originally posted by Atticus Grinch
Of course, as with religion, I, along with several past Supreme Courts, think it's insanely stupid to apply the strict language of a document even when it inflicts avoidable harm, net-net-net.**

"Harm" appears to be a subjective judgment. You reinvent militia to suit your needs, find a right to privacy, and push for campaign finance standards that you plan on avoiding from day one because they are plainly unconstitutional. At what point do you simply accept that your value is an appointed body making a new umbrella of overarching laws, disconnected from any principle of, well, principle, but only when you get to make the appointments? I fear your "new" interpretation of the role of the SC is about to bite you, and me, on the butt. Yes, you got several decades of reinventing the C - but now, unless the Dems do much better than I think they have a chance to, we're going to be saddled with the christers finding new and interesting "harms". Thanks for that.

[Atticus Grinch]

Originally posted by Skeks in the city
No, the motivation is choosing who gets to depreciate the property. If the purported lessor is only a lender, they can't get the deductions.

Dee-pree-see-ate? See, this is why I do neither tax nor RE transactions.

[Atticus Grinch]

Originally posted by Secret_Agent_Man
This has to be nothing more than a subtle form of trolling.

A most excellent sentence that suffers only from having one too many adjectives.

[Atticus Grinch]

Originally posted by bilmore
At what point do you simply accept that your value is an appointed body making a new umbrella of overarching laws, disconnected from any principle of, well, principle, but only when you get to make the appointments?

I'm not really a fan of judicial activism. One of the things that keeps the SCOTUS from being a star chamber is their usual insistence on Article III standing and their inability to rove across the legal landscape looking for wrongs to right in order to placate an electorate. Those are still congressional prerogatives, thankfully.

My beef with strict constructionism isn't that I think it's an invalid way of looking at a problem. On the whole, I think it's better than Natural Law. My beef with it is that it's like games theory. "Let's see how this case would be resolved if . . . ." A judge employing it is like a prosecutor who doesn't believe in prosecutorial discretion. If the only aspect of a legal system that you value is its predictability, then strict constructionism is for you. But if you got into law to make arguments other than "What did this word mean during the Enlightenment?" it's a depressing use of brain function. SC also causes a massive loss of confidence in the system by every person who isn't really happy with what their ancestors were forced to do by the framers.

Besides, we all saw the bad results that came about when Greg Brady tried to live by his Exact Words. Have we learned nothing since 1971?

Yes, you got several decades of reinventing the C - but now, unless the Dems do much better than I think they have a chance to, we're going to be saddled with the christers finding new and interesting "harms". Thanks for that.

Um, I thought the Christers were the ones with wistful feelings about Life Circa 1789. It's not like strict constructionism puts the brakes on the religious right's agenda. As I understand it, a love of SC is another thing you (coincidentally, I'm sure) share with the wingnuts.

Besides, I really don't think rediscovering the deism of the Founding Fathers would eventually have stopped reactionary wingnuts from achieving theocracy anyway. They seem undeterred by the historical record regarding the framers' personal relationships with Jesus. Case in point, I keep getting e-mail forwards about how Thomas Jefferson was really a paragon of Christian orthodoxy. Motherfucker re-wrote the Bible, mind you, but the wingnuts think he's one of theirs.

[Secret_Agent_Man]

Originally posted by bilmore
I fear your "new" interpretation of the role of the SC is about to bite you, and me, on the butt. Yes, you got several decades of reinventing the C - but now, unless the Dems do much better than I think they have a chance to, we're going to be saddled with the christers finding new and interesting "harms". Thanks for that.

All well and good, but would you prefer a state in which it was illegal for the government to enact workplace health and safety regulations? Or to control emissions from industrial sites? Or where the state could lawfully enforce segregation? Or where the state could lawfully tell you not to wear condoms?

In for a penny, in for a pound.

Our changing society has influenced the Supreme Court, but the Supreme Court has also influenced society.

S_A_M

P.S. On a completely different topic, BB -- but I keep forgetting to bring this up.

Do you remember that post of mine that got you so riled up -- asking whether you thought that the government could lawfully boil the Gitmo prisoners in oil? You thought this was horrible hyperbole.

Well, in the oral argument before the 9th Circuit in the case on the availability of judicial review for the Gitmo detentions (currently on appeal to the S.Ct.) -- counsel for the Administration, in response to questions from the bench, apparently took the position that there could be no judicial review of the Gitmo detentions or the activities at that facility _even_ _if_ the U.S. government was torturing and summarily executing the detainees. (I say "apparently" because I read a little blurb in the Economist, rather than a transcript.)

Not surprising -- the government had to take such a position or it would undermine the basic premise of their defense. We'll see how that flies at the S.Ct.

Of course, this is not something with which with any of us should be concerned, because we know that our government would never behave improperly. Still, I am not pleased or proud to have my government making such arguments.

[bilmore]

Originally posted by Secret_Agent_Man
All well and good, but would you prefer a state in which it was illegal for the government to enact workplace health and safety regulations? Or to control emissions from industrial sites? Or where the state could lawfully enforce segregation? Or where the state could lawfully tell you not to wear condoms?

This is scant justification for discarding a government based upon a constitution. We have the means of amending ours if we chose, and, if the cause is important enough and "right" enough for enough people, we can so amend. This is a variation on the argument that holds that the Constitution is a living document, that must mean what we "need" it to mean on a daily basis - but, when you open that door, you open the door to Pat Robertson's "needs", too, if he can get the votes. And it appears that he can. Every time you decide that "they didn't really mean you can't sue the states, because how would we ever enforce our good and worthy social objectives if we couldn't", you delegitimatize the Constitution - and, ultimately, you lose its protection. Your logic only works when the "right" people are in charge.

[bilmore]

Originally posted by Atticus Grinch
A judge employing it is like a prosecutor who doesn't believe in prosecutorial discretion.

As it should be. It's a constitution, not a suggestion-filled brochure.

If the only aspect of a legal system that you value is its predictability, then strict constructionism is for you.

I do so value predictability in a legal system. It is paramount. That's the main point - imutable standards applicable to all, and known by all. And amendable if enough people desire to go through a known and tough process.

But if you got into law to make arguments other than "What did this word mean during the Enlightenment?" it's a depressing use of brain function. SC also causes a massive loss of confidence in the system by every person who isn't really happy with what their ancestors were forced to do by the framers.

I truly hope this was tongue-in-cheek. It's too early, and I haven't had enough coffee.

[leagleaze]

I was asked to post the following from someone who cannot log in from work during the day.

Em said that em would be very interested in people's thoughts.

Here is the link

http://volokh.com/2004_02_22_volokh_...55881581156396

and here is the item

Consumer Fraud?: Only 58% of African American matriculants to law school complete law school and pass the bar exam, compared to 86% of white matriculants. TRANSCRIPT OF THE BOSTON BAR ASSOCIATION DIVERSITY COMMITTEE CONFERENCE: RECRUITING, HIRING AND RETAINING LAWYERS OF COLOR, Boston Bar Journal, May/June 2000 (available on Westlaw). Of the 42% who never become lawyers, about half don't make it through law school, while the other half never pass the bar exam.
At the top third of law schools, 91% of African Americans graduate, and 84% of them pass the bar. These statistics suggest that once one gets to the bottom half of American law schools, well less than half of African American matriculants ever become attorneys. This is all, of course, a result of admissions policies pursued in the name of "racial justice."

[spookyfish]

Originally posted by leagleaze
I was asked to post the following from someone who cannot log in from work during the day.

Em said that em would be very interested in people's thoughts.

Here is the link

http://volokh.com/2004_02_22_volokh_...55881581156396

and here is the item

Consumer Fraud?:

(A bunch of stuff I'm leaving out.)

These statistics suggest that once one gets to the bottom half of American law schools, well less than half of African American matriculants ever become attorneys. This is all, of course, a result of admissions policies pursued in the name of "racial justice."

Couldn't this possibly mean that there are too many law schools, the existence of which is perpetuated by taking marginal candidates of all races, rather than necessarily having anything to do with race? The one thing the article doesn't mention is what the statistics are for non-black students in the same schools. Obviously, even the top-rated schools have some form of affirmative action policy, and the results are considerably better.

Not really wanting to start an argument about it, but the picture presented is woefully incomplete.

[Mmmm, Burger (C.J.)]

Originally posted by spookyfish


Not really wanting to start an argument about it, but the picture presented is woefully incomplete.

Yeah, kind of hard to draw any conclusions from a one-paragraph blog entry. The only true comparative is the overall graduation rate. It might tend to support the hypothesis that affirmative action brings minority/black candidates into schools in which they're in over their heads. Or it might not. Who knows. But it's better than debating polygamy.

[sgtclub]

Originally posted by Mmmm, Burger (C.J.)
Yeah, kind of hard to draw any conclusions from a one-paragraph blog entry. The only true comparative is the overall graduation rate. It might tend to support the hypothesis that affirmative action brings minority/black candidates into schools in which they're in over their heads. Or it might not. Who knows. But it's better than debating polygamy.

I draw the conclusion that the test must be biased - we cannot otherwise explain why one group does worse than another.

[Mmmm, Burger (C.J.)]

Originally posted by sgtclub
I draw the conclusion that the test must be biased - we cannot otherwise explain why one group does worse than another.

Now that's putting your liberal-arts education to good use!

[bilmore]

Originally posted by spookyfish
The one thing the article doesn't mention is what the statistics are for non-black students in the same schools. Obviously, even the top-rated schools have some form of affirmative action policy, and the results are considerably better.

Amen. I assume that people who make it into the top 20 schools are more motivated, both to get in, and to stay in once they get in.

Plus, those students who are either working and going to school days, or, even more stressfully, working FT and going to night school, are more likely to be in the non-top-20 schools, and have extraordinarily more pressure and stress in the situation, and are much more likely to drop out.

So, it's a useless quote.

[Secret_Agent_Man]

[

Originally posted by bilmore
This is scant justification for discarding a government based upon a constitution. We have the means of amending ours if we chose, and, if the cause is important enough and "right" enough for enough people, we can so amend. This is a variation on the argument that holds that the Constitution is a living document, that must mean what we "need" it to mean on a daily basis - but, when you open that door, you open the door to Pat Robertson's "needs", too, if he can get the votes. And it appears that he can. Every time you decide that "they didn't really mean you can't sue the states, because how would we ever enforce our good and worthy social objectives if we couldn't", you delegitimatize the Constitution - and, ultimately, you lose its protection. Your logic only works when the "right" people are in charge.

(a) First : Yes, it is.

(b) Second, and More Seriously : [Sorry this is a bit disorganised]

I am not intending to discard a government based upon a constitution. Moreover, my argument is not meant as a a variation on the "living document" argument -- it is meant to be exactly that argument. It seems to me that this argument, and that approach to Constitutional law, is the only approach that enables the Constitution to remain relevant and legitimate, and indeed to even survive as our society and our world continues to evolve.

Without this approach -- our government and society would be horribly calcified. Hell -- without that approach there would not even be judicial review of the actions of the Executive and Legislative branches -- which we have long since come to accept as a critical part of the checks and balances which make our Nation work and help the bulk of the citizenry buy into our civil and political society. John Marshall, not Warren Burger, was the first great judicial activist.

Look at the brevity of the document. The Consitutition provides an outline, nothing more. It is a framework for government and society which is meant to grow and evolve; to be filled in as time passes. The basic structure of the framework is altered less frequently (by amendment) -- which is a wise point to ensure stability.

The amendment process is -- with good reason -- way too cumbersome and protracted to use to address each and every issue that arises whcih falls outside the basic text of the Constitution.

So anyway, I realize that the knife cuts both ways -- and that I will not always agree with the decisions of an "activist" court. [That is why judicial appointments are so desparately important to me.] Nor, BTW, do I believe that a court should act as a legislature. I cite, for example, to the jurisdiction and standing requirements that AG spoke of earlier. Nor do I advocate a purely results-oriented outcome in cases. Rather, I believe it is possible and proper to interpret the Constitutional framework (language) in light of our evolving societal standards and only rarely need to turn to the amendment process.

In sum, I never decide that "they didn't really mean it when they said . . . ". I just generally never bother to care too much about precisely what a bunch of people born 250-300 years ago meant when they wrote "X" because those people (despite their many admirable qualities and abilities) were operating in a completely different world.

The general framework and principles are admirable. But why should we care what John Adams would have thought about regulating pollution, for example? Constitutitional law need not and should not be simply a matter of "interpreting the contract."

I will also say that I do not believe that the "living document" approach deprives our Constitution, judiciary, or government of "legitimacy". Legitimacy is like money in that its value is all based on perception. In my view, a crabbed, strict constructionist approach to Constitutional interpretation would cause our system to have far less legitimacy in the eyes of the populace. Indeed, it has often been precisely those crises of legitimacy that has led to shifts in our jurisprudence.

[You've also cleverly hit on one area (suits v. states) where I think that the language is so crystal clear that it is hard to "evolve" and probably requires amendment if you want to sue the states. I know you're hitting this area because of the Pryor discussion yesterday.]

Finally, I return to the point that the social freedoms you fear the "christers" may roll back would not exist without the "living document" approach. I don't see that as a "Yeah, but." or a "So what?"

S_A_M

[sgtclub]

Originally posted by Mmmm, Burger (C.J.)
Now that's putting your liberal-arts education to good use!

Yep, it would take a drug induced, touchy feely, liberal arts education to reach that conclusion.