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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 1:38 pm 
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Not so sure Mike.

1. I learned much, including but not limited to the meaning of implication. Re-read what you say and see the obvious.
2. I learned and rely on diagraming to this day. A skill which is completely ignored today in schools.
3. The constitution is not always in line with catholic teachings. Just one example: the constitution allows for slavery by indicating the year in which Americans could no longer import them, but allowed ownership to continue without limits. I'm sure that the church does not teach ownership of another human being as a part of its doctrine.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 1:49 pm 
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No. 9 wrote:
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


For anyone interested, above is the text to the First Amendment to the United States Constitution.

There are 3 clauses separated by semicolons:
1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
2. Congress shall make no law abridging the freedom of speech, or of the press
3. Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So . . . for those strict constructionists out there, a question. What gives Congress the right to pass any laws "abridging" the freedom of any speech?

Why are laws burdening or abridging speech acceptable when the Government demonstrates that restriction of such speech “furthers a compelling interest and is narrowly tailored to achieve that interest.” I don't see any language in the Constitution which states that "Congress shall make no law abridging the freedom of speech unless such law furthers a compelling interest and such law is narrowly tailored to achieve that interest."


Isn't it a fair question as to why the Framers included the phrase "or of the press" immediately after "make no law abridging the freedom of speech?" If Congress could not make any law abridging the freedom of speech, isn't inclusion of "of the press" redundant? Or, as in contract law, must it be presumed that the Framers had a specific and particular reason for including such language?

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 1:59 pm 
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No. 9 wrote:
No. 9 wrote:
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


For anyone interested, above is the text to the First Amendment to the United States Constitution.

There are 3 clauses separated by semicolons:
1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
2. Congress shall make no law abridging the freedom of speech, or of the press
3. Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So . . . for those strict constructionists out there, a question. What gives Congress the right to pass any laws "abridging" the freedom of any speech?

Why are laws burdening or abridging speech acceptable when the Government demonstrates that restriction of such speech “furthers a compelling interest and is narrowly tailored to achieve that interest.” I don't see any language in the Constitution which states that "Congress shall make no law abridging the freedom of speech unless such law furthers a compelling interest and such law is narrowly tailored to achieve that interest."


Isn't it a fair question as to why the Framers included the phrase "or of the press" immediately after "make no law abridging the freedom of speech?" If Congress could not make any law abridging the freedom of speech, isn't inclusion of "of the press" redundant? Or, as in contract law, must it be presumed that the Framers had a specific and particular reason for including such language?



You are probably setting a lawyerly trap for us ill-informed geologists! But, I will bite. A read of the Federalist papers, and correspondences between folks like Adams and Jefferson, shows they were focused on political speech. That was at the core of their approach.

Where is the trap door that is about to open on me?

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 2:06 pm 
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No. 9 wrote:
No. 9 wrote:
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


For anyone interested, above is the text to the First Amendment to the United States Constitution.

There are 3 clauses separated by semicolons:
1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
2. Congress shall make no law abridging the freedom of speech, or of the press
3. Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So . . . for those strict constructionists out there, a question. What gives Congress the right to pass any laws "abridging" the freedom of any speech?

Why are laws burdening or abridging speech acceptable when the Government demonstrates that restriction of such speech “furthers a compelling interest and is narrowly tailored to achieve that interest.” I don't see any language in the Constitution which states that "Congress shall make no law abridging the freedom of speech unless such law furthers a compelling interest and such law is narrowly tailored to achieve that interest."


Isn't it a fair question as to why the Framers included the phrase "or of the press" immediately after "make no law abridging the freedom of speech?" If Congress could not make any law abridging the freedom of speech, isn't inclusion of "of the press" redundant? Or, as in contract law, must it be presumed that the Framers had a specific and particular reason for including such language?


I think that they understood the power of free press an wanted to make sure that the government could not control it and therein control any criticism of government actions.

Since we consider corporations citizens today, it would be redundant unless you are suggesting that corporations were not thought to be seen as citizens with the same rights by the founders. If that be the case, the SC has mistakenly ruled in this matter.

It may also be the case that they were protecting themselves if, like Franklin, some were owners of papers, magazines, or books.

Help me here, wasn't there a case of press censorship against a man in NY whose name started with a Z in early America? And was that before the constitution was written? Could that have influenced the founders on this inclusion of the press in the amendment?

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2011 Will Be Our Year -- well make that 2012 (just saying) So it looks like 2013 now - how long must this go on!
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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 2:19 pm 
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You are wrong.

A corporation is not a citizen, and is not considered so.

A corporation is an assembly of individuals that have the right to redress.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 2:42 pm 
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Help here No.9 or Wilton, I'm no expert here but understood that to be the case.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 2:57 pm 
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Go and reread Bucfan's post. He too, is a lawyer.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 3:26 pm 
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Just read it twice. Don't see the reference to corporation not being considered citizens. I'm probably wrong but on the outside chance I'm not, maybe one of the lawyers will clear up the matter.

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2011 Will Be Our Year -- well make that 2012 (just saying) So it looks like 2013 now - how long must this go on!
THIS IS IT-- NO MORE STREAK!!! *** Finally*** Time to win it in 2014


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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 4:00 pm 
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ZelieMike wrote:
No. 9 wrote:
No. 9 wrote:
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


For anyone interested, above is the text to the First Amendment to the United States Constitution.

There are 3 clauses separated by semicolons:
1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
2. Congress shall make no law abridging the freedom of speech, or of the press
3. Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So . . . for those strict constructionists out there, a question. What gives Congress the right to pass any laws "abridging" the freedom of any speech?

Why are laws burdening or abridging speech acceptable when the Government demonstrates that restriction of such speech “furthers a compelling interest and is narrowly tailored to achieve that interest.” I don't see any language in the Constitution which states that "Congress shall make no law abridging the freedom of speech unless such law furthers a compelling interest and such law is narrowly tailored to achieve that interest."


Isn't it a fair question as to why the Framers included the phrase "or of the press" immediately after "make no law abridging the freedom of speech?" If Congress could not make any law abridging the freedom of speech, isn't inclusion of "of the press" redundant? Or, as in contract law, must it be presumed that the Framers had a specific and particular reason for including such language?



You are probably setting a lawyerly trap for us ill-informed geologists! But, I will bite. A read of the Federalist papers, and correspondences between folks like Adams and Jefferson, shows they were focused on political speech. That was at the core of their approach.

Where is the trap door that is about to open on me?

ZM


Not setting a trap at all . . . I'm no Constitutional scholar . . . been too long since I took ConLaw in school.

However, based upon what I see going on is you looking at the Federalist papers and correspondence between others to assist in interpreting the language of the Constitution. I've got no problem with that at all. In my eyes, that is not a "strict construction" approach. "Strict construction" involves looking at the words and the words only. In contract law, you only look beyond the words when there is an ambiguity.

The First Amendment reads "Congress shall make no law abridging the freedom of speech." Is that vague? Is that ambiguous? If you (and I'm not referring to you Mike; I'm referring to a collective group of individuals) are truly a "strict constructionist," then you should wholly oppose the notion that Congress can pass any law which restricts speech - no matter how dangerous, repulsive or vile that speech may be. No matter how content neutral, time neutral or limited to particular places.

If you accept the notion that Congress can pass a law which is narrowly tailored to protect a legitimate governmental interest which also happens to restrict or abridge speech, then you are looking beyond the words of the Constitution and you are not a "strict constructionist." You are interpreting the words with the help of other sources of material, analyzing the intent of the "contract" and trying to figure out what the Framers not only intended but how they would have reacted if 2010s reality existed in the late 1700s.

So . . . if looking beyond the mere words is acceptable . . . and reliance upon other data, documents and "evidence" is acceptable . . . then, at least in my opinion, you must conclude that the Constitution does not enunciate "absolutes." Thus, if you are OK with this approach, then you simply cannot argue that the so-called "right to bear arms" is an absolute. That it is perfectly acceptable to look beyond the words and try to figure out what the Framers intended, in the atmosphere of the 1700s and how they would have reacted if the 2010s were reality in the late 1700s.

I'm not taking issue with the opinion. I simply too far removed to offer an educated opinion as to how the majority reached the opinion. Late last night, I printed the Citizens United case and have yet to read it and don't claim to understand yet the basis or bases for the conclusion. I stand by my observation (even after the Yuenglings have worn off) that the result may have been very different if it was a "liberal" organization and they intended to broadcast a villification of a conservative candidate one week before an election. I can't help but think that the arguments employed by the majority and the dissenters would have been nearly identical but that the justices signing off on the opinion/dissent would have been flip-flopped. I simply see too much outcome determinative analysis to avoid being cynical.

My issue is with those who characterize themselves to be "strict constructionists" when, in reality, they are no where close to being so. And, yes, it is my opinion that a certain Italian named Justice fits that category perfectly.

Me . . . I don't see how you can simply look at the words that were written in the late 1700s and not resort to interpretation and apply some sort of practical application to the existing real world.

Now . . . does that mean I agree/disagree with a law passed by Congress prohibiting a corporation from going on TV with an "infomercial" on the eve of an election? I have more digging to do before I have anything to offer on that.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Feb 04, 2010 7:22 pm 
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No. 9 has a point. If one were a literalist, then reasonable restrictions on the time, place, and manner of speech would also be deemed unconstitutional. Such a stance would fly in the face of 100 years worth of 1st Amendment jurisprudence.

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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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