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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 8:12 pm 
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Much of that I agree with, but to keep it short, I think that is too strict an interpretation of what constitutes constructionist v activist.

There is a huge chasm between realizing and enumerating the differance between ensuring fair political speech and arresting someone yelling "Hi Jack" in the airport; and searching the 4th amendment for a privacy right that cannot be found, or a using the commerce clause as an excuse for just about anything.

In this case, fixing a long standing wrong does not constitute "activist".

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 9:59 pm 
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If so then Roe v Wade is also not activism because it is making right a long standing wrong. See Mike someone with different perspectives can use the same argument.

As I've tried to indicate before in this thread, your point of view can and does color your perception of "activist court".

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 10:02 pm 
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I end with the same statement I began with:


Substitute2 wrote:
We now have an activist supreme court, unless the definition of that phrase has changed.

Thanks W for the activist court.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 10:11 pm 
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ZelieMike wrote:
Much of that I agree with, but to keep it short, I think that is too strict an interpretation of what constitutes constructionist v activist.

There is a huge chasm between realizing and enumerating the differance between ensuring fair political speech and arresting someone yelling "Hi Jack" in the airport; and searching the 4th amendment for a privacy right that cannot be found, or a using the commerce clause as an excuse for just about anything.

In this case, fixing a long standing wrong does not constitute "activist".

ZM

Hmm, hyperbolize much?

By the way, if you think Citizens United achieved fair political speech, I suggest you read the following:
Quote:
In the context of Citizens United, it is unclear to me how shareholders are inappropriately disadvantaged by a prohibition on corporate expenditures. Shareholders aren’t disadvantaged by their decision to incorporate, because they always remain free to make independent expenditures on an unlimited basis in their individual capacity, just like non-shareholders and everyone else. The analysis might be different if shareholders were in a worse position than non-shareholders, but they’re not. Just as non-shareholders can aggregate funds through a PAC or political party, so too can shareholders. Perhaps the government should allow corporate expenditures and simply expect non-shareholders to incorporate as well, but whether the Constitution prohibits the government from refusing to do so is a different matter.

What functional difference does Citizens United achieve by permitting corporations to spend treasury funds on independent expenditures?—a key difference is that shareholders obtain the advantage of streamlined aggregation through the corporation, as opposed to other entities. To aggregate their funds, non-shareholders pool their funds, subject to personal income tax, derived from various sources by contributing individually to a PAC or political party. The PAC or party collects their pooled money, but it does so only subject to applicable restrictions on contributions under campaign finance law. By contrast, the post-Citizens United corporation may serve as both a source of funds and the pooling entity for those funds all at once for its shareholders. It can pool shareholder money simply by retaining earnings, instead of distributing dividends to shareholders who then must aggregate those funds through a separate entity. This streamlined aggregation not only lowers transaction costs, but uses pre-tax dollars (for purposes of personal income tax) and bypasses restrictions on contributions. Aggregation through PACs and parties is quite inefficient by comparison. So, I don’t understand why shareholders should be constitutionally entitled to this advantage. And it is difficult to understand why speech by PACs and political parties, whose First Amendment credentials are at least as strong in this context as for-profit corporations, would receive less constitutional protection.

http://www.concurringopinions.com/archi ... nited.html

In a sense, Citizens United did not level the playing field on political speech; it instead created an unfair advantage towards those who incorporate.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 10:16 pm 
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Substitute2 wrote:
If so then Roe v Wade is also not activism because it is making right a long standing wrong. See Mike someone with different perspectives can use the same argument.

As I've tried to indicate before in this thread, your point of view can and does color your perception of "activist court".

A good point. What one perceives to be "a long standing wrong" may be very different compared to what another thinks is "a long standing wrong."

And in any event, the Judiciary is not tasked with the duty to correct "long standing wrong[s]"; their duty is to interpret the Constitution. Whether the Court actually does correct a "long standing wrong" in doing so is a different matter entirely.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 9:48 am 
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Substitute2 wrote:
If so then Roe v Wade is also not activism because it is making right a long standing wrong. See Mike someone with different perspectives can use the same argument.

As I've tried to indicate before in this thread, your point of view can and does color your perception of "activist court".


No, it is activism because it finds something that is not clearly written and intended.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 9:54 am 
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Willton wrote:
ZelieMike wrote:
Much of that I agree with, but to keep it short, I think that is too strict an interpretation of what constitutes constructionist v activist.

There is a huge chasm between realizing and enumerating the differance between ensuring fair political speech and arresting someone yelling "Hi Jack" in the airport; and searching the 4th amendment for a privacy right that cannot be found, or a using the commerce clause as an excuse for just about anything.

In this case, fixing a long standing wrong does not constitute "activist".

ZM

Hmm, hyperbolize much?


No, I don't. That is why I use "Chasm".


Quote:
In a sense, Citizens United did not level the playing field on political speech; it instead created an unfair advantage towards those who incorporate.


I don't fall into the "fairness = equality of outcome" school, as you apparently do. I fall into fairness is access for all.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 2:33 pm 
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ZelieMike wrote:
Willton wrote:
In a sense, Citizens United did not level the playing field on political speech; it instead created an unfair advantage towards those who incorporate.


I don't fall into the "fairness = equality of outcome" school, as you apparently do. I fall into fairness is access for all.

ZM

I was never talking about equal outcome; my statement regarding the unbalanced playing field had to do with equality of access, which apparently is your main concern.

If your main cocern is about access, then I don't see how you can take the position you take. Shareholders were never shut out of making contributions to political campaigns prior to Citizens United. If a shareholder of a company wanted to make a political contribution, he or she could easily do so using his or her own taxable income like every other American. Shareholders had just as much access to the political system as non-shareholders did prior to Citizens United. So if the concern is about access to the political system, then the Supreme Court had no basis on which to rule the way they did.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 4:20 pm 
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I frankly do not understand how one can interpret the 1st amendment as permitting a governmental entity to exercise prior restraint of political speech.

The arguments about "leveling the playing field" are bullshit, Wilton. The playing field is not to be leveled, or tinkered with, at all. The idea that the government can restrict political speech to make elections more "fair" is antithetical to the 1st amendment.

The 1st amendment protections were adopted to avoid exactly that. And it is telling that "fairness" depends on whose ox is getting gored. Sub2 and Wilton believe that corporations now have an "advantage" in participating in elections, and that is "unfair." Mike and I disagree with that proposition.

So, how about this - Sub's opinion, and Wilton's, and Mike's and mine should not determine who can say what about the political process. Let all say whatever they want, as much as they want, and let the contrary view paint politicians and political views as being "bought and sold." Then, the voters can decide whom to believe or not believe.

And I can tell you what the Constitution says about this issue: Congress shall pass no law infringing freedom of speech, or of the press.


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 5:56 pm 
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This thread has my head spinning. :? :? :? 8-) 8-) 8-)


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 8:02 pm 
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ZelieMike wrote:
Substitute2 wrote:
If so then Roe v Wade is also not activism because it is making right a long standing wrong. See Mike someone with different perspectives can use the same argument.

As I've tried to indicate before in this thread, your point of view can and does color your perception of "activist court".


No, it is activism because it finds something that is not clearly written and intended.

ZM

One would characterize Citizens United as being the same.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 8:07 pm 
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Willton wrote:
One would characterize Citizens United as being the same.

Explain, please. I thought that I had set forth the operative facts for the case before the Supreme Court. It did not involve issues of corporate intrusion into the political realm, etc.

It was simply a case of prior restraint of political speech - the speech of a United States cititzen - by a Federal bureaucracy.


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 8:36 pm 
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Az Bucco fan wrote:
This thread has my head spinning. :? :? :? 8-) 8-) 8-)



Then we have been successful.

The bombing starts in 15 minutes. :D

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Fri Feb 05, 2010 10:21 pm 
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Bucfan wrote:
Willton wrote:
One would characterize Citizens United as being the same.

Explain, please. I thought that I had set forth the operative facts for the case before the Supreme Court. It did not involve issues of corporate intrusion into the political realm, etc.

It was simply a case of prior restraint of political speech - the speech of a United States cititzen - by a Federal bureaucracy.

Indeed, but that does not justify how broad the decision was. The Court could have simply said that the McCain-Feingold Act was unconstitutional as applied to the video that Citizens United wanted to broadcast. The law was not facially unconstitutional, as evidenced by the many plausible interpretations given by the dissent. But the Supreme Court decided strike it down anyway by invoking its overbreadth doctrine when there was no precedent for it in this arena, and thereby charting campaign finance law on an entirely new path. That may not be as activist as Roe or Griswold, but that's pretty damn activist.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Sat Feb 06, 2010 11:34 am 
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I come back to a question that I posed earlier. The Founders wrote "Congress shall make no law abridging freedom of speech, or of the press." Why is the clause "or of the press" included? Does that simply refer to the written word? As written then, doesn't a strict interpretation of the Constitution support the conclusion that any law which abridges/bans/hinders/restricts "freedom of speech" or "of the press" unconstitutional?

And, again, I understand the focus on "political" speech versus "non-political" speech . . . but there is nothing written in the US Constitution which says that the 1st Amendment should offer special protections to political speech versus non-political speech. Any semblance of understanding of US history recognizes the times/atmosphere when this document was written. Of course, political speech would have been at the forefront of the Founders' minds at the time.

Where is it written in the Constitution that Congress can pass laws abridging the freedom of speech as long as those laws are narrowly tailored to promote a reasonable governmental interest? Where is it written that Congress can pass laws abridging the freedom of speech as long as those laws are content neutral, deal with location for that speech and the manner in which it is delivered? For what it is worth, the self-proclaimed "strict constructionists" on the current Court have no problem with Congress passing such laws.

I guess a lot of the analysis comes down to how you want to view the document. Is it a rigid document? Is it a flexible document? And, if the Founders were living in Washington D.C. today . . . about what would they be concerned if they were drafting a Constitution? If they were concerned about the tyranny of King George in the 1700s, what "tyranny" would concern them today? And how would they address it? And, if you support the notion that our Supreme Court Justices must go beyond the written word and analyze the "intent" of the Founders, then I - again - submit that you are not a "strict constructionist." You are attempting to interpret the document (the "contract," the "promises," the "guarantee") by resorting to other materials.

And, if you support the idea that our Supreme Court Justices should simply look at the written word, enforce the document as it is written, then Congress should not be able to pass any law abridging the freedom of speech or of the press.

Again, I'm not commenting on the opinion itself because I haven't found the time to sit down and read it. I'm commenting on the "labels" that commentors and political pundits are trying to place upon "the other side."

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Sat Feb 06, 2010 12:30 pm 
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Y'er killin' me Mike. :lol: :lol: :lol: 8-) 8-) 8-)


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Feb 08, 2010 6:42 pm 
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Willton wrote:
Indeed, but that does not justify how broad the decision was. The Court could have simply said that the McCain-Feingold Act was unconstitutional as applied to the video that Citizens United wanted to broadcast.

The problem you have is that the ruling would thereby find that the FEC had no right to exercise prior restraint of political speech of a United States citizen - which is what they did. The effect was to void the statute.

There may be some confusion - the statute in question did not deal with donations to political candidates (those remain in effect), or deal with foreign contributions or foreign spending on political issues (those are still banned). The statute in question sought to "counteract" the influence of PAC's and others interested in the political process, and who might have enough money to sway the process (unless of course the entity was a newspaper or television station).

In other words, the law has basically one purpose - to end political adverstising critical of a candidate (via an issue dispute) within 30 days of a primary, or 60 days of a general election. The law had no other purpose. So, if that portion of the law is unconstitutional, the law needs to be stricken.

Moreover, you appear to be recommending that the courts apply an "as applied" standard. That is, have the law remain in effect, and in the event a party is barred from airing an ad, then have the court decide if such prohibition withstood constitutional muster.

The FEC had argued in 2003 that such approach (termed "as applied" challenges) could be used, but then switched its position relative to an effort in 2004 by a Wisconsin entity, called "Women's Right to Life" ["WRTL"], to publish ads critical of Senators Feingold and Kohl for filibustering Federal judicial nominees. The FEC banned such ads in August of 2004, because Feingold was unopposed in the primary. According to the FEC, since he was unopposed, the ads were a "sham" issue and thus were intended to be critical Feingold. The FEC dubbed the ads "electioneering communications," rather than "issue oriented" statements that could be broadcast within the prescribed time period.

WRTL filed suit, challenging the FEC's ruling and arguing that an "as-applied" analysis could be done with respect to its ad. WRTL contended that it was a genuine "grass-roots" movement, which is allowed under McCain-Feingold to pursue its political interests under an amendment to the MF law.

The SEC said, "no dice," and argued that "as applied" challenges were not permitted. This was exactly the opposite of what the agency had said in the 2003 case before the Supreme Court, McConnell v. FEC. In the McConnell case, the FEC had asked that the court not rule the statute unconstitional, but instead merely strike down its exercise of power in that case and review future cases on an "as-applied" basis. That is, each case before the court would be reviewed to see if it passed constitutional limitations on restraint of political speech.

The Federal Court of Appeal sided with the FEC in the WRTL case and dismissed the suit. The Supreme Court stepped in and took the case. The Court noted that the FEC had completely reversed their prior position. Chief Justice Roberts called it a "classic bait-and-switch." The Supreme Court re-instated WRTL's case and returned it to the District Court for evaluation.

Moreover, the majority evaluated your recommendation (find the statute unconstitutional as applied, but leave the statute in place) and rejected that position. The Court held:

As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. See Morse v. Frederick, 551 U. S. 393, 403 (2007). It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin.

As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. See 2 U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus function as the equivalent of prior restraint by givingthe FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.


In other words, Wilton, the statute is a direct limit on political speech, that could have been saved (incorrectly, in my view) if the FEC had not been so random in application, inconsistent in its decisions, and disingenious in its arguments before the Supreme Court.

Wilton wrote:
The law was not facially unconstitutional, as evidenced by the many plausible interpretations given by the dissent. But the Supreme Court decided strike it down anyway by invoking its overbreadth doctrine when there was no precedent for it in this arena, and thereby charting campaign finance law on an entirely new path. That may not be as activist as Roe or Griswold, but that's pretty damn activist.

The dissenting opinion is, I believe, one that would make George Orwell blush. Specifically, as the concurring decision from Justice Roberts pointed out:

The dissent advocates an approach to addressing Citizens United’s claims that I find quite perplexing. It presumably agrees with the majority that Citizens United’s narrower statutory and constitutional arguments lack merit — otherwise its conclusion that the group should lose this case would make no sense. Despite agreeing that these narrower arguments fail, however, the dissent argues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law. It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majorityis not “serious about judicial restraint.” Post, at 16.

This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that “[i]f it is not necessary to decide more, it is necessary not to decide more,” post, at 14 (internal quotation marks omitted), sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving thecase at hand, “the court must meet and decide them.”


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Feb 08, 2010 10:18 pm 
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:oops: :oops: :oops: :oops: :oops: :oops:


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Tue Feb 09, 2010 8:46 pm 
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Not sure why, but I trugged my way through that whatever it was. Can I say that these are the ...things... that try mens souls.

They are also the reason for people wanting tort reform. My ggodness, that should have been a private communication. Perhaps a published article in Lawyers-R-Us.

Pass the asprin please now!! :? :? :? :? :? :? :?

Ok ok I agree that you guys are smart suckers!

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