Yup, we're boned: Supreme Court kills campaign finance reform

[Darius871]

You expected wrong. Didn't you hear Olbermann *****ing about corporations not being people?

To stay sane I try to think Olbermann isn't representative of anyone, including even his ever-dwindling ~900K viewers who either stop in to marvel at the train wreck, fell asleep in Matthews' lead-out, or are Oerdin.

[Kuciwalker]

The trope on the loony left is "if corporations are people, why can't they go to jail or be drafted etc. etc.".

It's a depressingly successful bit of rhetoric.

[Drake Tungsten]

To stay sane I try to think Olbermann isn't representative of anyone

I've read the same argument elsewhere.

edit: Apparently Justice Sotomayor was making the same argument back in September...

http://blogs.wsj.com/law/2009/09/17/is-sotomayors-corporations-arent-people-comment-a-harbinger/tab/article/

edit 2: http://www.npr.org/templates/story/s...ryId=112714052

[Darius871]

Eh, do these people not notice that the NAACP is a corporation? Even if they weren't too lazy to throw in the for-profit qualifier, that interest around which a group of people choose to associate doesn't make them cease to be a group of people. WTF, I just don't get it...

[Drake Tungsten]

If corporations don't have a right to political speech, why should newspapers be allowed to endorse candidates?

[Elok]

The trope on the loony left is "if corporations are people, why can't they go to jail or be drafted etc. etc.".

It's a depressingly successful bit of rhetoric.

Why would we need to draft corporations? They're pretty active in the war process as it is...

[flash9286]

Doesn't "current law" include Citizens United's adoption of a "practical equivalent" standard? I'll assume you mean "the law a week ago."




I don't recall all of those 5 "declar[ing]" themselves "originalist" in the sense that brings perhaps Thomas to mind; Scalia's made clear that "[y]ou will never hear me refer to original intent, because as I say I am first of all a textualist.... If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words," such that "freedom of speech" would be most discernible from a dusty old dictionary and would have jackall to do with what the Framers thought. Meanwhile Roberts and Alito, though having made some conservative votes, haven't put forth any definitive label (let alone originalist) and Kennedy's been crucial to some of the more activist decisions out there. It's a mixed bag and the many decades of stare decisis drawing the First Amendment well beyond any "original" meaning hardly make continuing that trend an "activist" leap.

Oh well, even if the whole bloody lot of them are hypocrites (on both sides for that matter), it wouldn't be the first time or the last. Well, that's what we get for hiring such ****ty drafters in the first place, and then being such pussies about amending in the second place. It's not as if the perfect solution isn't staring us in the face.

I haven't read all the opinion, but the law blogs I have read it was decided under a subsequent punishment precedent. Either way it doesn't matter, it wouldn't have been considered a prior restraint at the time of the adoption of the amendment which is what matters.

And you should have quoted the whole quote "You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words." That is Scalia cares about what the words would have meant when they were adopted, i.e. original meaning.

More quotes

I [Scalia] am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.

“The way out is the way out we've had for most of our history: The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that's the end of it,” Scalia said. “If you want more rights, create them by statute, if you want more constitutional rights, create them by amending the Constitution.

Both nominees were asked whether they considered themselves "originalists" who believe, like Justices Scalia and Thomas, that the Constitution must be interpreted in light of the original intent of its framers. Judge Alito seemed to endorse originalism.

[Darius871]

I haven't read all the opinion, but the law blogs I have read it was decided under a subsequent punishment precedent.

That's precisely what I meant by "the many decades of stare decisis drawing the First Amendment well beyond any "original" meaning hardly make continuing that trend an "activist" leap," though I could have been more clear. The offhand obiter dictum I quoted was only a small snippet of the overall opinion, which was based on post-hoc punishment cases that were never in line with "original intent" in the first place. It's not "activist" to ignore original intent when a decades-old trend has already been ignoring original intent.

Either way it doesn't matter, it wouldn't have been considered a prior restraint at the time of the adoption of the amendment which is what matters.

No, that is not "what matters" unless you happen to be an originalist. In other judicial philosophies it's just one of multiple nondispositive factors, and in still others it's not a factor at all.

And you should have quoted the whole quote "You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words."

Big deal; "first of all" and "secondly" implies that one takes precedence and can be decisive all its own, while the latter's the last resort in the rare event of textual ambiguity. The First Amendment is one instance where the text could hardly be more clear, so in his view that should be the end of it. Your added two quotes should be qualified in that he's not referring to what the Framers understood the words to mean (which from their elitist lawyerly pedestal probably was wound up in the long history of prior restraint that was distinguished from post hoc remedy in the >secret< Philadelphia Convention discussions), but rather what "the people" at the time would have understood the bare words to mean when they "adopted" the Framers' draft. I'd submit to you that the lay public probably read a lot more into the words "freedom" (liberty unhindered by external authority, interference, restriction) and "speech" (ability to express one's thoughts and emotions to others) than the Framers themselves did, and the former take precedence since they are the sovereign. Nothing in your added two quotes ignores this key distinction that has always set Scalia apart from "originalists" in the sense that you mean it.

[flash9286]

That's precisely what I meant by "the many decades of stare decisis drawing the First Amendment well beyond any "original" meaning hardly make continuing that trend an "activist" leap," though I could have been more clear. The offhand obiter dictum I quoted was only a small snippet of the overall opinion, which was based on post-hoc punishment cases that were never in line with "original intent" in the first place. It's not "activist" to ignore original intent when a decades-old trend has already been ignoring original intent.

If that is your definition of activism, then the court has almost never been activist. Roe v. Wade wouldn't be activist since it is predated by Griswold.

No, that is not "what matters" unless you happen to be an originalist. In other judicial philosophies it's just one of multiple nondispositive factors, and in still others it's not a factor at all.

Big deal; "first of all" and "secondly" implies that one takes precedence and can be decisive all its own, while the latter's the last resort in the rare event of textual ambiguity. The First Amendment is one instance where the text could hardly be more clear, so in his view that should be the end of it. Your added two quotes should be qualified in that he's not referring to what the Framers understood the words to mean (which from their elitist lawyerly pedestal probably was wound up in the long history of prior restraint that was distinguished from post hoc remedy in the >secret< Philadelphia Convention discussions), but rather what "the people" at the time would have understood the bare words to mean when they "adopted" the Framers' draft. I'd submit to you that the lay public probably read a lot more into the words "freedom" (liberty unhindered by external authority, interference, restriction) and "speech" (ability to express one's thoughts and emotions to others) than the Framers themselves did, and the former take precedence since they are the sovereign. Nothing in your added two quotes ignores this key distinction that has always set Scalia apart from "originalists" in the sense that you mean it.

The first amendment is not clear, nobody knows where it begins and ends. In a strict texualist sense Congress could make absolutely no law restricting any kind of speech, nobody holds that view. This is true of most of the Constitution, so if you read Scalia's opinion he often resorts to trying to find out what the people who have meant when the words were adopted, see Heller.

Your distinction between original intent and original meaning is superficial. Do you really believe that the framers had different semantics from the ratifiers.

[Darius871]

Meh, it took me a few posts to realize I hate this **** even when getting paid for it, to say nothing of interweb jibberjabber. Whatever you said is 100% spot-on or whatever.

[Imran Siddiqui]

Do you really believe that the framers had different semantics from the ratifiers.

Actually yes. Look at the Federalist Papers for one (which was a PR document for ratification), and the different interpretation that two of those authors, Hamilton and Madison took in deciding what the Constitution said after its ratification.

[Darius871]

Actually yes. Look at the Federalist Papers for one (which was a PR document for ratification), and the different interpretation that two of those authors, Hamilton and Madison took in deciding what the Constitution said after its ratification.

Hell, for that matter compare Madison's views with Patrick Henry's vitriolic diatribes at the Virginia Convention and the many other views in between (all detailed in Volume 3 of Jonathan Elliot's debate record) to get a good idea of how much meanings changed in that period. Plus the differences between the Framers and the ratifiers wouldn't even take into account the considerably more vast differences between the relatively educated and propertied ratifiers and the general populace, which was the true source of the "common acceptation of language" as Henry Lee put it in that same convention. Samuel Johnson's dictionary and some period newspapers might be a better source for the latter, but still not conclusive. This flurry of variations is the very reason why traditional originalism (which Scalia vocally rejects) represents such a small and discredited minority these days.


Dammit, I said I was done here...

[flash9286]

Meh, it took me a few posts to realize I hate this **** even when getting paid for it, to say nothing of interweb jibberjabber. Whatever you said is 100% spot-on or whatever.

Fair enough, this discussion shows pointless it is to call constitutional law "law" at all.

Actually yes. Look at the Federalist Papers for one (which was a PR document for ratification), and the different interpretation that two of those authors, Hamilton and Madison took in deciding what the Constitution said after its ratification.

Imran, I'm not sure what you are saying here. Of course there is no divine truth as to what the framers or the ratifiers meant. My point was that I don't think that the ratifiers on average would have defined words that much differently than the framers did. Wouldn't the common usage of words apply to both the ratifiers and the framers?

[Darius871]

Fair enough, this discussion shows pointless it is to call constitutional law "law" at all.

That's what it always boils down to. I got into this biz hoping for the luxury of bright lines, only to find more of a mind-numbingly nebulous morass than ever before. Maybe it's not too late to get into tax while there's still some sliver of sanity, or maybe be a farmer...

[flash9286]

That's what it always boils down to. I got into this biz hoping for the luxury of bright lines, only to find more of a mind-numbingly nebulous morass than ever before. Maybe it's not too late to get into tax while there's still some sliver of sanity, or maybe be a farmer...

QFT. Even where there should be bright lines, i.e. business laws, securities regulation, etc, there is too much ambiguity. I'm taking Fed Tax this semester, it has been more enjoyable than my other classes so far.