Police attacking the left across Midwest

[The Templar]

Originally posted by Imran Siddiqui
No, because you place the blame for what the Hans court did on the Rehnquist Court! That's intellectually dishonest.

Allow me to retract and rephrase then - Rehnquist and Co. are to blame for maintaining bad precedent and extending it. I guess I would blame the Warren court for maintaining it as well if it ever came before them as a live issue (and no, I don't know if it did).

When did I say anything about the framers? The 11th Amendment came after the framers and superceeds anything the Constitution says beforehand (and anything after it superceeds the 11th, which is why Civil Rights cases aren't subject to soveriegn immunity). The courts looked at the intention for the 11th Amendment at the time it was passed and ratified. The founders have nothing to do with it.

You didn't - the court in Hans did. They argued that the framers never intended a private right of action. I'm saying the text runs against this - ergo it's a bad argument - ergo its bad precedent.

So wait... you are saying that the schools from 25-30 are dramatically inferior? Please . And it was in the Top 25 last year, so does that mean my analysis would have been better before the recent ranking came out?

Let's both put it back in our respective pants on this point. I know law school rankings mean jack (especially ones done by Brian Leiter).

Precedent ain't an easy thing to overturn, as witnessed by the fact that in the 100 years from

Sure it is - the court says its disavowing an old docrine and breaking with precedent. Easy as that. And if the SCOTUS does it, it can't be appealed. I will grant you that it is not a good idea to break with precedent wily nily - but it can easily be done. And given that Hans has become Maine and Maritime Commision the precedent is awful. Not Plessey or Korimatsu awful, but pretty bad. I mean come on, allowing states to ingnore federal labor law with respect to state employees?

[The Templar]

Originally posted by Imran Siddiqui

See People v. Staples

Is that SCOTUS? Because it doesn't show up on Findlaw.

Or do you mean Staples v. United States? Because if you do, you know that Criminal law is a bit different than Constitutional Law when it comes to interpretation, right?

Yeah, that's the one.

Thomas is essentially a textualist who is a bit more honest than Scalia about his basis for interpretation - i.e. Natural Law type arguments. But he tends to reason in a textualist mode with respect to cases. In Staples he notes that the text of the statute does not impose strict liability and so he is unwilling to read it that way.

[Imran Siddiqui]

Allow me to retract and rephrase then - Rehnquist and Co. are to blame for maintaining bad precedent and extending it.

Fine, now if you originally has said so, it would have been better. And the Warren Court, even if it didn't decide on this issue, maintained it because they undoubtably denied cert to this issue (which, come on, has to be brought up every few years or so in the lower courts).

Sure it is - the court says its disavowing an old docrine and breaking with precedent

Technically it is easy, practically it is not. After all, precedent is what the entire court system is based on.

Not Plessey or Korimatsu awful, but pretty bad.

May I remind you that Korimatsu is still good law?

[DinoDoc]

Imran: Get on ICQ!

[Imran Siddiqui]

Thomas is essentially a textualist who is a bit more honest than Scalia about his basis for interpretation - i.e. Natural Law type arguments. But he tends to reason in a textualist mode with respect to cases. In Staples he notes that the text of the statute does not impose strict liability and so he is unwilling to read it that way.

Like I said Criminal Law is different from Constitutional Law. In Criminal Law there has been a turn that if a statute does not say 'strict liability' then it does not mean it. This was spearheaded by the MPC.

Btw, it is actually an ANTI-textualist argument. Because Thomas is reading things in that are not already there. Because there is no mens rea requirment, the statute should be read as strict liability. No mens rea stated means no mens rea required. Thomas' position here is that even though there is no mens rea here, we are going to impose mens rea, and from now on if a statute is silent on mens rea, we are going to go to the default mens rea under the MPC, which is recklessly.

In Constitutional cases, Thomas always goes back to 'what did the Framers mean'. He doesn't look at the text, but more to the intent behind the words. That is what Natural Law is about, right? I've never heard Natural Law and Textualism co-exist peacefully before. They are naturally at odds. The great Textualist, Oliver Wendall Holmes said (paraphrasing) natural law has no place in the Constitution.

[Imran Siddiqui]

DD, will do... have to Download it... this home computer was wiped clean .

[The Templar]

Originally posted by Imran Siddiqui
May I remind you that Korimatsu is still good law?

No need to. I sometimes worry that Ashcroft is going to attempt to cite it as precedent one of these days in his never ending quest to lock up brown people and Muslims. I persist in the (somewhat) naive hope that not even the current supreme court would fail to put Korematsu to rest

[Imran Siddiqui]

They may, but they wouldn't directly overturn it, IMO. Like I said, precedent is difficult to get rid of. Most likely the court would narrowly construe Korematsu.

And you can't get rid of all of it, after all, it created the 'strict scrutiny' standard in Equal Protection cases based on race .

[Kidlicious]

Originally posted by Imran Siddiqui
Kidd: Says the person who proclaims himself an expert on economics, and yet finds just about every masters trained economist on this site wonder what the Hell you are going about...

Some folks here take advantage of peoples ignorance and make half truth statements. Then if some one calls them on it they just call them stupid. I just try to get the truth out.

Originally posted by Imran Siddiqui
Yet when people say it about you, do you believe that you have limited knowledge in economics? No... you continue to assert you are right.

That's not true. I have admitted my mistaken thoughts. I'm not going to admit I'm wrong though unless I am.

Originally posted by Imran Siddiqui
(For the record, I do believe you are knowledgable about economics, but also think you are incorrect about plenty... doesn't make you incompetant about the subject... unless you think it does ).

If I'm incorrect about things I hope to find out the truth, not just continue to believe things that are wrong.

[Berzerker]

chegitz -

That's a nice theory, but the people are sovreign, not the States.

That's a nice theory , but what happens when some people - "sovereigns" - use the state to infringe upon the freedoms of other people who are also sovereign?

The States weren't even forced to accept that they had to abide by the Bill of Rights until the last century.

The states weren't obliged because the 14th Amendment had not been added until after the Civil War, so why would the states have to accept those restrictions before that?

Even now, as The Templar mentions, the people have very litte redress against the actions of their states.

And who is to blame for that? The voters in that state?

Sure, we can vote them out of office, providing they don't blatently violate the law, as they did in Florida.

What state politician in Florida blatantly violated the law to avoid being voted out of office? If you're talking about the presidential election, that's ridiculous. Gore was trying to get additional recounts only in counties he considered Democrat strongholds to increase his tally, he didn't give a damn about the law. That tactic, if successful, would have treated the voters in Florida differently by applying different standards. It sure takes alot of spin to turn that blatant attempt to subvert the equal protection clause of the Constitution into an accusation against Bush.

All the Constitution guarantees us against our own states is that the governments must be republican.

There were several prohibitions on the states even before the 14th Amendment. But the US Constitution was, for the most part, a blueprint for the federal government, not the states which have their own constitutions. The people, via their states, "delegated" certain powers to the federal government, and the Constitution is a record of those delegated powers. Unfortunately, far too many people believe the feds can do almost anything as long as the Constitution doesn't explicitly prohibit the action.

The Constitution has never even been ratified by the people of the US. IIRC, we're the only Constitutional government in the developed world to have that honor.

Are you suggesting the Constitution should be re-ratified every decade or so? Those other countries don't do that, so why are we unique?

The States created the Constitution, the States ratified it, and only they can change it. We are their subjects, not their masters.

Who do you think make up the states? People living in them?
If your complaint is that a state may not always do the bidding of the majority of those who vote, i.e., "democracy", so what?
I agree we are subjects and not sovereign, but that's because various legislative bodies have passed laws criminalising our freedom, and they usually do this at the behest of the majority who will gladly vote away freedoms they don't cherish.

[Imran Siddiqui]

Kid: But do you really think you are wrong when someone else says you are? Or do you keep fighting if you think you are right? Hopefully you keep fighting.

[Kidlicious]

Originally posted by Imran Siddiqui
Kid: But do you really think you are wrong when someone else says you are? Or do you keep fighting if you think you are right? Hopefully you keep fighting.

Actually I try to figure out what they are talking about. I look up some facts and really try to figure out what the other person thinking. The last thing that I would want to do is continue to fight when I'm wrong. In some cases it takes everyone time to figure out what is the truth or the side which makes the most sense.

[The Templar]

Originally posted by Imran Siddiqui
Like I said Criminal Law is different from Constitutional Law. In Criminal Law there has been a turn that if a statute does not say 'strict liability' then it does not mean it. This was spearheaded by the MPC.

Is the Federal Penal Code based on the MPC? Only about half the states are.

Btw, it is actually an ANTI-textualist argument. Because Thomas is reading things in that are not already there. Because there is no mens rea requirment, the statute should be read as strict liability. No mens rea stated means no mens rea required. Thomas' position here is that even though there is no mens rea here, we are going to impose mens rea, and from now on if a statute is silent on mens rea, we are going to go to the default mens rea under the MPC, which is recklessly.

Try again. Balint imposed strict liability w/o the statute saying so. Morisette distinguished common law crimes as an exception. The offense in Staples was a regulatory offense, not a common law offense - so it should have fallen under Balint. Ultimately, Thomas's decision distinguished Balinton the grounds that the nature of the act (indistinguishable from innocent behavior) - he then makes the point that the statute does not call for strict liability.

I just realized something - we're both using Westlaw to argue on the Apolyton OT. We have too much time on our hands.

[Imran Siddiqui]

Is the Federal Penal Code based on the MPC?

A lot of it, actually.

Balint imposed strict liability w/o the statute saying so. Morisette distinguished common law crimes as an exception. The offense in Staples was a regulatory offense, not a common law offense - so it should have fallen under Balint. Ultimately, Thomas's decision distinguished Balinton the grounds that the nature of the act (indistinguishable from innocent behavior) - he then makes the point that the statute does not call for strict liability.

But, he based it on the MPC, which was taking greater and greater hold on the federal courts. The tide was turning in the states that when the statute is silent a mens rea should be applied. Thomas went with the states and MPC.

Though I still don't understand how it is textualist argument? Balint is a textualist case (if it doesn't say a mens rea, we won't infer one) and this distinguished that case.

I just realized something - we're both using Westlaw to argue on the Apolyton OT. We have too much time on our hands.

Not I . This is all from memory . All of these cases I studied in law school classes (though we didn't read the full excerpt of Hans).

[The Templar]

Originally posted by Imran Siddiqui
Not I . This is all from memory . All of these cases I studied in law school classes (though we didn't read the full excerpt of Hans).

My bad, you were using FindLaw (according to the above post where you were looking for Staples). What the hell is FindLaw?