Balkinization  

Friday, May 06, 2016

Stare Decisis in Liberal Constitutional Thought

Gerard N. Magliocca

Building on Mark's post, I think that an important question over the next several years will be how the liberal Justices understand stare decisis once they are in the majority.  Part of what Mark calls "defensive crouch liberal constitutionalism" was a relatively robust view of precedent, for the simple reason that liberal precedents were more often on the chopping block.  I suspect that it will be rather hard for senior Justices such as Breyer and Ginsburg to abandon that sensibility, though maybe not so much for the newer members of that wing of the Court.

Comments:

I think it was always clear that the liberal attachment to stare decisis was purely tactical, (Much like their former concern for freedom of speech.) so I can't say I'm at all surprised by Mark's essay. I don't believe it will actually be all that difficult for the named Justices to go along with tossing it aside.

Take Heller; All they have to do is maintain their reasoning from when they were on the losing side. One more liberal Justice, no existing votes changed, and the RKBA goes away. (And all hell breaks loose.)

In any event, Breyer and Ginsberg are old enough that, given a liberal in the White House, if they can't stomach doing the work of overturning precedent, they'll likely just retire to open space for somebody who will. Ginsberg in particular isn't going to be on the Court much longer in any case.

I think Mark was a bit premature in his celebration, though. This is one issue that's really going to energize the right to hold their noses and vote for Trump. And the NRA is going to be on the march for sure.

Mark just gave them their marching orders.
 

Since there was a "former" concern, when did liberals stop caring about freedom of speech?

The RKBA won't "go away" even if Heller was overruled though it will help to overrule that opinion if the Republicans continue to block Garland. Garland has been over time shown to be more minimalist than various alternatives. OTOH, as someone notes over at Volokh Conspiracy, basically, liberals have little reason to do so. The types of regulations likely to pass (even some that don't) are ALLOWED by Heller. Overruling is done carefully. Plus, it is far from clear how Scalia's former hunting buddy (Kagan) wants to act there.

Mark Tushnet unlike the NRA is not here to support one cause. The NRA is going to support the Republican candidate. What else is new? Meanwhile, as noted over at Volokh Conspiracy, Trump will promote various anti-conservative and anti-libertarian ends, including given his general views on freedom of expression, executive power and so forth. But, like evangelicals voting for a divorced Hollywood actor in 1980 over the true thing, consistency isn't always the thing.



 

We already have some evidence of how Justice Breyer in particular treats stare decisis, including in cases whose results repeatedly went against a strict left leaning direction. But, the ultimate results there will long term rely on Scalia's replacement (Republicans apparently want someone younger and more actively liberal there) and the next replacements. RBG/Breyer/Kennedy are all getting up there in age.
 

Brett isn't old enough to know the course of stare decisis and precedent over the 220+ years of the existence of the Court and is obviously ignorant of the history of the Court. It was not the liberal justices who invented stare decisis and precedent in decisions of the Court. These concepts existed earlier in Anglo-American law. And over the history of the Court both justices on the conservative side and the liberal side utilized stare decisis and precedent. Perhaps Brett's ignorance is due to his relative youth, having been weaned on what has happened since Brown v. Bd. of Educ (1954). Originalism gestated in the 1970s and delivered with the movement of conservatives in conjunction with pseudo-libertarians with the Federal Society, in reaction primarily to the alleged activism of the Warren Court. Many of the decisions of the Warren Court that this dynamic duo objected to were a tad not strictly based upon stare decisis and precedent. It' been clear to me for a long time that deep down the originalist movement and the Federalist Society were founded on their objections to what Brown wrought, reflected today in the base of the Republican Party (older undereducated white males) that will nominate Trump as its 2016 presidential candidate.

By the Bybee [expletives deleted}, to what extent was Heller based upon stare decisis and precedent? Perhaps Brett is using Heller as a stand for that base's "Last Chance Saloon" backed by Brett's:

"And the NRA is going to be on the march for sure."

But Brett's really a pussycat: All talk and no jock.

 

My 1A question can be deemed rhetorical.

Mark Tushnet wrote a good book on the 2A: "Out of Range: Why the Constitution Can't End the Battle over Guns." He also clerked for Thurgood Marshall, so can understand the appeal. But, as seen by Breyer/RBG's path after stating their stance on the death penalty (e.g., they are not out there dissenting from each execution), that isn't the path likely to be followed. RBG played the long game back in the 1970s. I recommend "Notorious RBG" to get a flavor of her.

Anyway, what will happen will depend on the 5th vote etc.
 

Check out Jack alkin's 2014 "The Last Days of Disco: Why the American Political System is Dysfunctional" in which he outlines how change comes about, including via the Court. It's available at:

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5885&context=fss_papers

I've commented on this speech given in 2014 in threads at this Blag in that timeframe. This was pre-Trump. The dysfunction continued. Throughout history, there have been political changes. This is another one. As to the Court, getting to 5 is the goal. Jack's speech article is not that long.
 

"Since there was a "former" concern, when did liberals stop caring about freedom of speech?"

At the latest, when they started proposing to repeal it.
 

Brett's:

"At the latest, when they started proposing to repeal it."

could use a cite, even in "0s" and "1s," in hind-cite.
 

Jack' post on Ilya Shapiro was cutting. But how come Jack did not reference fellow New Originalist Randy Barnett who had a post at the VC with the title: "How John Roberts gave us Donald Trump"? Personally Randy's "Our Republican Constitution" sets forth The Donald's emergence. "Our Democratic Constitution" would not have allowed Donald Trump to emerge.

We need Sandy to get permission to make his symposium contribution on Randy's book available.

By the Bybee [expletives deleted], Dick Cheney will vote for Donald Trump, despite Trump's claims he was against the Cheney/Bush 2003 Iraq invasion, ALWAYS!
 

Gerard:

Progressive jurists and academics ALWAYS advance progressive policy; the Constitution, statute and precedent be damned. See Mark's last breathless post.

"Judicial restraint" is a century old progressive spin term for rubber stamping unconstitutional or illegal progressive policy.

"Stare decisis" is a tool of convenience to defend progressive precedent against conservatives who actually take stare decisis seriously, but to be forgotten when it is time to reverse non-progressive precedent. Progressives had no problem sh_t canning Bower v. Hardwick at the first opportunity and will gut Heller to (re)erase the 2A as soon as they can.

Jack is fooling himself if he thinks that anger at the courts rewriting law or rubber stamping other bodies rewriting the law is not an important part of the overall rage against a lawless government ruling against the will of pluralities to majorities of the people.
 

Orin Kerr v. Randy Barnett is popcorn-worthy too though OK isn't the only one not "okay" with Trump.
 

SPAM I AM! on his "soliloquy" demonstrates that he is still in the Anger stage of his Charlie Brown "Good Grief." SPAM I AM!'s anal-ysis of "judicial restraint" and "stare decisis" seems a tad to overlook the rise of the originalism movement and the Federalist Society Society beginning in the late 1970s objecting to the judicial activism of the Warren Court. In fairness, though, as the conservatives got to control the Court, lo and behold it engaged in {drum roll] judicial activism. So SPAM I AM! seems to counter 100 years of progressivism with judicial activism? Does judicial activism take the Constitution "as written"? (Cue to Mr. W.)

As for SPAM I AM!'s "See Mark's last breathless post" in contrast SPAM I AM! provides a comment post loaded with legal halitosis.

Take with a grain of CO Mile High State (of mind) Ganja what a fool like SPAM I AM! says about Jack fooling himself.in his closing paragraph.

By the Bybee [expletives deleted], with SPAM I AM!'s flattering review of Randy Barnett's new book, does SPAM I AM! agree with Randy's claim: "How John Roberts gave us Donald Trump."? Apparently in their grief Randy, Ilya and SPAM I AM! are grieving together in Egypt in de-Nile - all wet. I would suggest all three go back to law school for lessons on causation.
 

A reminder: Why has Jack neglected Randy Barnett on who's responsible for Trump?
 

Over at the Originalism Blog there is a post on Randy and Ilya's blame games on CJ Roberts for Trump. Excepts and links are provided (as well as to Orin Kerr's disagreement) including a video link for Randy's talk. That video should go viral to the same extent as the 69 year old Trump is virile. I haven't watched the video as yet, but I'm imagining what Randy's body language might look like on what is intended to be a scholarly topic presented by a constitutional scholar. Maybe it will help to sell Randy's new book: "Our Republican Constitution." I wonder if the book includes blaming CJ Roberts for Trump. Jack's critical review of the book in 27 delicious pages does not, as I recall, make any mention of Randy's causal connection.
 

Jack Balkin has been talking about Randy Barnett here for quite some time:

http://balkin.blogspot.com/2004/06/congratulations-to-randy-barnett.html
 

Good point, Joe. The 2004 congratulations related to Randy's efforts to have Wickburn and its progeny overturned. Alas, originalist Justice Scalia relied upon stare decisis and precedent with the result that Randy was out-potted. No funny skinny smokes allowed on Scalia's watch.

By the Bybee [expletives deleted], If Trump were elected President, he would be the second MBA President. Let's discuss: Would Trump be a better President than the first MBA President? Alternatively, how could he be worse? Beating around the Bush allowed. (Imagine SPAM I AM! and Brett in such a debate.)
 

My comment to Orin's Washington Post article:

Politics is not delegitimizing our government, but rather our government has lost nearly all legitimacy by corruptly ruling beyond its constitutional and statutory bounds against the will of pluralities to majorities of the people. Americans established their nation not through the politics of delegitimizing the British government, but rather because the Crown and Parliament lost nearly all legitimacy by corruptly ruling beyond its constitutional bounds against the will of the colonists. If you re-read the Declaration of Independence, you could apply much of its indictment against the British government to our government today.

Justice Roberts's opinion in the Obamacare cases are a perfect example of illegitimate governance. In National Federation of Independent Business v. Sibelius, after noting that the Obamacare statute itself referred described the “[s]hared responsibility payment” meant to punish those who failed to obey the individual mandate as a “penalty,” not a “tax,” Roberts contradictorily held that the "penalty" was not a tax for the purposes of the Anti-Injunction Act, but was still a proper exercise of Congress's taxing power. Roberts lost any remaining legitimacy as a justice in King v. Burwell by rewriting the Obamacare statute expressly limiting subsidies to “an Exchange established by the State" to instead read “an Exchange established by the State or Federal government."

It is true that the Roberts decisions are only two of the hundreds of illegal and illegitimate government actions accumulating over the past several years, but they are part of the abuses against which the voters are rebelling by voting for someone outside their corrupt government.

 

Via the WaPo SPAM I AM! demonstrates nationally that he is ahistorical and hysterical at the same time.

CJ Roberts must be a progressive based on SPAM I AM!'s standards, standards which include his claim that The Gilded Age were America's best days and that "armed revolution" may be an alternative to political dysfunction.

By the Bybee {expletives deleted}, I recall that Orin Kerr put down a SPAM I AM! complaint at VC some years back. Can someone resurrect that put down? Query: Did SPAM I AM! comment on Randy's blame CJ Roberts for Trump post?

Further BY the Bybeee [e.d.], CJ Roberts seriously erred in the Obamacare case, despite precedent, on the commerce power. (CJ Roberts was more obliging to Randy Barnett than was the late Justice Scalia in Raich. But getting to 5 (in addition to healthcare) can cure this.
 

Back from camping.

""At the latest, when they started proposing to repeal it."

could use a cite, even in "0s" and "1s," in hind-cite."

Gosh, Shag, I didn't know you lived in a cave, and I was certain that you had internet access, given that you comment here.

That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

“Article —
SECTION 1.To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2.Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3.Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”.


Of course, Section 3 is worthless, because Democrats are also committed to nominating justices who'd hold that freedom of the press didn't protect more than a tiny fraction of what it's presently understood as protecting.
 

Translation of this reprehensible proposal to amend the 1A: The federal and state governments may censor the political speech of people associated into business entities, except for Democrat media corporations, by prohibiting them from spending money to communicate their speech.

The purpose of this proposed amendment is to silence the businesses the government is attempting to direct.

Totalitarianism at its essence.
 

Shag: CJ Roberts must be a progressive based on SPAM I AM!'s standards

Roberts personal ideological preference is irrelevant.

Whether Roberts caved under admittedly enormous pressure from the progressive legal establishment is irrelevant.

What is relevant is that Roberts violated his judicial oath and duty to defend the Constitution in order to rubber stamp facially illegal progressive policies.
 

That must have been a short camping trip Brett took There are of course many proposals for amendments to the Constitution, some submitted by liberals, some by conservatives. Brett plucks out one proposal that at first blush seems to be aimed at Citizens United, a 5-4 decison by the Court..I have no ideal when this proposed amendment was filed, by whatever group or what its status is. The proposed Amendment may no be necessary if the Court can get to the left side of 5. But Brett's comment that I inquired of was probably shorthand for the Republican Party's base primarily of older, undereducated white males that has swallowed the leader, so to speak, with Donald Trump as the presumptive nominee of the Republican Party for 2016. There are few absolutes in the rights enumerated in the first 10 Amendments. Of course Brett and SPAM I AM! disagree. But a review of decisions of the Court over the past 220+ years demonstrates few such absolutes. Rather than blame CJ Roberts for Trump, perhaps the blame belongs to Justice Kennedy, the swinger currently on the Court. When the Court gets back to 9, it will get to 5. (Gee, there might be a movie or musical in this.)

By the Bybee [expetives deleted], SPAM I AM!'s standards on just about everything are irrelevant.
 

On a more serious not, Stephen Griffin's post "Trump and Trust" raises some serious issues. Check out the Mother Jones article at:

http://www.motherjones.com/politics/2016/05/donald-trump-soon-get-classified-briefings

dated May 5, 2016, titled "Donald Trump Will Soon Get Classified Briefings. How Worried Should We be?" I don't know if The Donald has to go through a vetting process for such Briefings, but consider his history over quite some period of time and that during the campaign he has been a flannelmouth. Also, consider persons he has been connected with, including the new head of his campaign, lobbyist Manafort, with recents foreign clients classified as dictators.The article provides a history of this Briefing process, going back to Pres. Truman, referencing also a role the CIA might have.

Perhaps Stephen Griffin, Marty Lederman and/or Andrew Koppelman might have some thoughts on this.
 

SPAM I AM! with this:

"What is relevant is that Roberts violated his judicial oath and duty to defend the Constitution in order to rubber stamp facially illegal progressive policies."

seems to be charging CJ Roberts of a criminal act. Perhaps SPAM I AM! makes this charge as an experience criminal attorney and should be taken seriously - at least by the CO Bar. There is a difference between saying the CJ was wrong or that he violated his oath. Absolute free speech doesn't protect such a charge, especially by an officer of the court. Perhaps SPAM I AM!'s defense is that he was being hyperbolic, which seems to be a chronic condition for him.

 

"I have no ideal when this proposed amendment was filed, by whatever group or what its status is."

So, what you're saying is that you didn't bother following the link I helpfully provided?

My wife is the one in the lavender top. Not the toughest camping trip I ever took.


 

The proposed amendment does not show "liberals" (who are split on the amendment with some non-liberals in general supporting the general principles behind it as seen by their support of McCain [not a liberal]-Feingold) are no longer "concerned" about "freedom of speech" any more than "Republicans" who supported decades before to amend the Constitution because of a specific viewpoint that they didn't support (that is, disparagement of the flag). The question was ultimately rhetorical since I knew that was code.
 

A summary of Bart's comment to Kerr: "Yes people like me have been delegitimizing the government, but that's because the government IS so illegitimate (and by illegitimate I mean it does stuff I don't want it to do but most Americans do want it to do).
 

"Democrat media corporations"

What a bunch of nonsense. Fox and the WSJ are going to be covered as well, and other than MSNBC I can't think of any major media corporations that align with the Democratic Party the way Fox does for the GOP.

"when they started proposing to repeal it."

And nonsense hyperbole from Brett (hardly surprising from the same guy who says illegal immigration is an 'invasion,' that alternative views of the Constitution are like bank robbers, etc., ). Yes, we all remember before 2010 when there was no freedom of speech. People were locked up for burning the flag or performing parodies or students suspended for wearing black armbands or not pledging allegiance to the flag.
 

Brett, K-K-Kamping would be tougher being three sheets to the wind. I did not link to the picture as I rather use my imagination on how you went international. Besides, being a luddite my computer is only in black and white, so lavender would not be identifying. But I hope it was a pleasant camping trip with family.

I did not check out your earlier links because there are many proposed amendments, some around for a long time. The proposal you posted may not be necessary to repeal Citizens United, as liberals may take the fifth soon. Citizens United is fairly recent that its value as precedent is not that great, especially in light of political events that followed demonstrating corruptive aspects of the decision.

By the Bybee [expletives deleted], at the NYTimes the dowdy Maureen's column previews next week's meeting between The Donald and Speaker Ryan. They may follow her script.
 

Again, on a more serious note, Stephen Griffin's post "Trump and Trust" should be considered regarding the management of Trump's assets if he were elected President. Check out the article at:

http://therealdeal.com/issues_articles/handing-over-trump-inc/

dated 4/1/15, titled "Handing over Trump Inc." by Rich Brockmann. It is hard to imagine The Donald considering a so called "blind Trust." Trump has said he would turn the businesses over to his children to operate., including perhaps the new Trump hotel near the White House. There are apparently few limitations on a President operating other than America's' business. Harry Truman had been a haberdasher prior to becoming a Senator. We haven't had a businessman as President to the extent of Trump's businesses. One need not have a great imagination to identify actual, potential or the appearance of conflicts of interest with the types of business assets Trump has that might arise. While there is some transparency regarding identifying assets/income of certain public officials periodically, that does not address, at least directly, such conflicts.

Voters should be aware of ethics/conflicts issues that might be addressed by, in particular, presidential candidates. The Donald has a long business history, some of it contentious. Unfortunately, despite more transparency laws beginning after WW II for public officials, there are apparently loopholes protecting a President and members of Congress. Since it takes both Congress and the President (subject, of course to overrides) to enact laws, they may be difficult in getting enacted.
Was there a time in American history when there was a President similarly situated in businesses as Trump is? Keep in mind that many is not most Presidents from the beginning of the 20th century had prior public service where trust could be displayed for the voting public.
 

BD: "What is relevant is that Roberts violated his judicial oath and duty to defend the Constitution in order to rubber stamp facially illegal progressive policies."

Shag: seems to be charging CJ Roberts of a criminal act. Perhaps SPAM I AM! makes this charge as an experience criminal attorney and should be taken seriously - at least by the CO Bar. There is a difference between saying the CJ was wrong or that he violated his oath. Absolute free speech doesn't protect such a charge, especially by an officer of the court. Perhaps SPAM I AM!'s defense is that he was being hyperbolic, which seems to be a chronic condition for him.


Violating one's oath to defend and enforce the Constitution is not a crime or a sizable majority of the bench would be subject to RICO prosecution.

For the moment at least, the First Amendment's guarantee of freedom of speech does allow me to point out violations of the Constitution.

Your suggestion that the government which licenses our profession should punish my dissent reveals your inner totalitarian.
 

BD: "Democrat media corporations"

What a bunch of nonsense. Fox and the WSJ are going to be covered as well, and other than MSNBC I can't think of any major media corporations that align with the Democratic Party the way Fox does for the GOP.


Allow me to help you: ABC, NBC, CBS, PBS, NPR, ESPN, and about 90% of the print media. BTW, the news articles of the WSJ are little different than those of the NYT across the city.

The only sector of the media where conservatives hold a majority share is talk radio.
 

Blankshot, when 90% of the well informed people in the country think that your ideas are idiotic, there is a very good chance that your ideas are idiotic.
 

Seriously, you're an imbecile.
 

"I did not check out your earlier links because there are many proposed amendments, some around for a long time. The proposal you posted may not be necessary to repeal Citizens United, as liberals may take the fifth soon."

Even Rick Hasen, noted advocate of overturning Citizens United, and of campaign 'reform' in general, has noted that the amendments proposed to reverse that decision all are written so that they'd gut the 1st amendment. He puts it down to sloppy drafting.

I put that opinion down to him being a bit gullible.

By the way, no link in the above, because you're not following my links anyway.
 

"Allow me to help you: ABC, NBC, CBS, PBS"

Nonsense, those outlets regularly report negative stories about Democrats. They're hardly wings of the Democratic Party in the sense that Fox (run by Ailes, a long time GOP operative) is for the GOP.

"Even Rick Hasen, noted advocate of overturning Citizens United, and of campaign 'reform' in general, has noted that the amendments proposed to reverse that decision all are written so that they'd gut the 1st amendment."

I doubt he talked about it being 'gutted' by the proposed Amendment. Here's Hasen's proposed fix:

“An individual or entity may contribute, spend from one’s own personal or general treasury, or both, no more $25,000 in each federal election on election-related express advocacy or electioneering communications supporting or opposing candidates for that election. Such limits shall not apply to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program. An individual also cannot contribute and/or spend more than $500,000 total on all federal election activity in a two-year election cycle.”


 

No link? So Brett was really K-K-Kamping and three sheets to the wind instead of on a family camping Trip? Although K-K-Kamping might be family for Brett. As to the "missing link," that/s an apt self- description by Brett. Shooting blanks again?

Speaking of shooting blanks, Frank Bruni's NYTimes column today "Sex and the Singular Pol" should be a stinging read for the current base of the Republican Party supporting Trump: older undereducated white males concerned with their declining numbers. Perhaps that base should consider Trump's campaign in this excerpt from Bruni's column:

"His carnal conquests are the cornerstone of his can-do braggadocio. I have always seized the best and the most, and this country deserves no less. I score, and so should you. His slogan might as well be Get America Laid Again."

Trump has long gone international, but not enough of his base.

And further speaking of shooting blanks [thank you, BB], SPAM I AM! proclaims:

"Violating one's oath to defend and enforce the Constitution is not a crime or a sizable majority of the bench would be subject to RICO prosecution."

extending his defamation beyond CJ Roberts to a larger group. SPAM I AM! thinks this is "Bar, humbug." But SPAM I AM! should be careful as I don't think the CO Bar is set that low.

And SPAM I AM!'s:

"The only sector of the media where conservatives hold a majority share is talk radio."

is based on economics: talk radio is cheap and listeners provide their own body language.




 

" Such limits shall not apply to the press"

That IS gutting the first amendment. Although journalists like to pretend otherwise, the 1st amendment's reference to "freedom of the press" is not a reference to their freedom, even if they have come to style themselves "the press".

It's the freedom of EVERYBODY to use the instrumentality, "the press". "The press" is that machine in the NYT's basement, not the NYT and its employees.

Hasen's proposal would take a right possessed by everyone in the nation, and give it to only those people the government decided to admit were part of "the press". Almost everybody in the country would lose a huge chunk of their constitutional rights. While the people who kept the right would only get to keep it so long as the government admitted they were part of that privileged minority.
 

Is Brett suggesting with this:

"It's the freedom of EVERYBODY to use the instrumentality, 'the press'. 'The press' is that machine in the NYT's basement, not the NYT and its employees."

that he and other older undereducated white males" not in the employ of the NYTimes (or WaPo, etc) can use its "press" for his/their purposes? The history of the differences, if any, of the "speech" and "press" clauses is not that clear and the Court's decisions over the years have not clarified this well especially with technological advances that some claim make all of us journalists. New Originalists might suggest the construction mode especially with respect to the "press" clause. It's a tad more than Ben Franklin's press was back in the 1780s. Presses don't operate on their own and definitely do not prepare content on their own (at least until we are overtaken by AI).

So, can we expect Brett and his ilk of Trump supporters to strap on their absolute 2nd A rights and march into the NYTimes for his/their "press" rights without trespassing on the rights of the NYTimes? That might well befit Brett as a self-proclaimed anarcho-libertarian (in his Klanish way).

 

Shag, I don't think you're actually a moron, (Though I'm open to the possibility I'm wrong about this.) but in your determined effort to misunderstand anything said by somebody you disagree with, you're perfecting a terrifyingly good simulation of one.

Freedom of speech is the freedom of everyone to speak, and freedom of the press is the freedom of everyone to use instrumentality to communicate. Print media started referring to themselves as "the press" well after the 1st amendment was adopted, in response to it. That does not make them "the press" referred to in the 1st amendment, and altering the amendment to impose that reading on it would be a massive contraction of 1st amendment rights.

I do not have the right to use the NYT's printing presses, (Unless they agree to it.) and they don't have the right to use MY printing press, aka "printer". That one of us has a bigger printing press doesn't specially privilege either of us.

As for your "KKK" reference? FOAD.
 

Hasen's proposal would take a right possessed by everyone in the nation, and give it to only those people the government decided to admit were part of "the press"

The "gutting" regards a proposal where people and entities are allowed to spend 25K and up to 500K in a two year cycle under certain rules. This SPECIFIC limit does not apply "to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program."

The "gutting" doesn't cover any other thing "the press" does. Plus, as Hasen notes in this book (which I read), "the press" in each state and the federal government (down to the rules apply by the Supreme Court to coverage and so on) already is specifically regulated, including regarding things like press immunity from testifying in various instances. I wouldn't suggest people eat any fish "gutted" if this is how the word is used (not that I eat fish, but still).

Campaigns, including spending and lobbying, has been regulated for centuries. Zephyr Teachout, e.g., in her book noted how lobbying to Congress was greatly restricted in the late 19th Century. Corporations were specifically regulated as far back as a century ago; likewise, corporations were traditionally greatly limited and current rules giving them such broad discretion to spend funds is far from something the Founders would have found essential. Finally, Teachout et. al. explain how regulations of spending etc. promote republican values.

Print media started referring to themselves as "the press" well after the 1st amendment was adopted, in response to it.

As Shag notes, the meaning of "the press" is open to dispute, including the breadth of "instrumentality" theory. The whole thing is a bit moot -- there is generally a broad "freedom of expression" that is not usually divided into even categories.

Nonetheless, concern for an institutional "press" or least a "press function" that is more than a matter of a press itself as a machine is a long term thing, not just an egotistical concern of the institutional press itself. This includes "the press" specifically having certain protections, such as access, immunity from subpoenas etc. The historical pedigree of this idea might be suggested by the term "Fourth Estate" which appears to have been coined in 1787 by Edmund Burke.
 

Rick Hasen is a "liberal" who is against the amendment approach on pragmatic and principle grounds. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979

He isn't alone among "liberals" just as not all "conservatives" wanted to amend the Constitution because the Supreme Court 5-4 upheld a viewpoint they didn't like.

Pragmatically, the amendment is a lost cause -- it won't be passed by Congress or by the necessary number of states. A range of other realistic moves including disclosure laws (like D.C. v. Heller, the closing off of regulations here is at times exaggerated), public financing and a long term effort to swing the Supreme Court to the position that was in place less than a decade earlier.

On principle, the amendments either do too much or too little. For instance, what is "reasonable"? Who decides? If the courts are, how much different will that be? Cf. Shelby v. Holder where the 15A power to regulate "appropriately" was deemed not to cover preclearance rules in place. OTOH, a broad reading would cover too much.

This wouldn't "gut" the 1A especially as compared to the breadth of regulations allowed not too long ago and the likely actual things that will be allowed under the new rules but it would go too far. General constitutional text is better as a whole. This also is why I oppose Justice Stevens' proposal to specifically eliminate the death penalty or an ERA that specifically adds "sex" to equal protection.
 

"The "gutting" doesn't cover any other thing "the press" does."

So? The point is that it takes us from a situation where anyone can spend any amount of money they fancy to express their opinion in print, to a situation where only a government designated class retain that right.

Specifically to exclude groups like Citizens United from that class. Let's not forget, the immediate origin of this outrage: A group created a documentary critical of a Democratic politician, and the left is outraged that they couldn't be silenced. Opposition to the CU ruling is firmly rooted in a desire for political censorship.

The threshold amount would be subject to later revision, presumably downward, and even people who didn't reach the threshold would get caught up in technical reporting requirements justified to determine who was crossing it. Reporting requirements that would carry penalties if not complied with. With the government perpetually having to make judgement calls about what publications were subject to the requirements, and which were not. Unavoidably political judgements.

There is a fundamental and unavoidable conflict between the ambitions of the 'campaign reformers', (A group almost exclusively of the left.) and the First amendment. Advocates of campaign 'reform' will never be happy so long as the great mass of people retain their rights, thanks to this.
 

Joe: Pragmatically, the amendment is a lost cause -- it won't be passed by Congress or by the necessary number of states.

A progressive Supreme Court will amend and partially erase the 1A by decree as soon as Congress or more likely a state legislature will get a law censoring business political speech in front of them.
 

Brett, that's quite K-K-Katchy of you, showing your K-K-Konsistency as well as K-K-Klasslesness.

Regarding non-interference with Brett's printer, I assume Brett includes his 3-D printer to enhance his absolute 2nd A rights, in combination with his "press" rights under the 1st A.

Brett's:

"Advocates of campaign 'reform' will never be happy so long as the great mass of people retain their rights, thanks to this."

suggests that "the great mass of people" have tons of money to speechify with as opposed to the ilk of the Koch Bros. and a few other conservative billionaires. Brett may believe that they speechify/press for him as one of "the great mass of people" who lack a pot to piss in as a result of the 0.1%ers' money that talks in order to expand the inequality gap that Brett and other older undereducated white males feel will extend their alleged supremacy challenged by the changing demographics (SDT).

 

SPAM I AM! ignores that the conservatives on the Court in Citizens United (5-4) just a short time ago "amended" the Constitution, including declaring the personhood of corporations (not to mention approving non-disclosure of contributors - real people). As I noted in earlier comments, when the Court gets back to 9 the new majority 5 will overrule Citizens United so there will be no ned for the amendment.
 

So? The point is that it takes us from a situation where anyone can spend any amount of money they fancy to express their opinion in print, to a situation where only a government designated class retain that right.

People don't have the ability to spend any amount of money they fancy now realistically and legally in various respects under long term campaign rules.

Also, the press NOW (and before) is treated differently in various respects. Next, the proposal doesn't merely separate "the press" -- it is one of various exceptions. It doesn't limit 'expression of opinion in print' (etc.) in a range of contexts. At some point, "gut" just might be an exaggeration.

Specifically to exclude groups like Citizens United from that class.

"shall not apply to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program." Not sure if CU could not have in some fashion as a "political committee" at least fell w/i exception.

Let's not forget, the immediate origin of this outrage: A group created a documentary critical of a Democratic politician, and the left is outraged that they couldn't be silenced. Opposition to the CU ruling is firmly rooted in a desire for political censorship.

Groups have every right to be critical of politicians of any stripe. The case was about the proper type of regulations of general treasury funds of corporations of a certain caliber. For instance, non-profit corporate funding had been treated differently. The allowance of personal spending of 25K and 500K overall in a two year cycle alone will not do much 'silencing' here.

The threshold amount would be subject to later revision, presumably downward and even people who didn't reach the threshold would get caught up in technical reporting requirements justified to determine who was crossing it. Reporting requirements that would carry penalties if not complied with. With the government perpetually having to make judgement calls about what publications were subject to the requirements, and which were not. Unavoidably political judgements.

Such things are in place now -- Citizen United allow disclosure and disclaimer rules. Reporting requirements are allowed in various respects. Contra to your presentist language (it's always "now" as if there was some past golden age), nothing new about that either. It allows certain types of thresholds. The "presumably downward" is your presumption and would damn any sort of regulation. Line-drawing is a game we can play all day including on the sorts of voting restraints you support, voting also a fundamental right in this country.

There is a fundamental and unavoidable conflict between the ambitions of the 'campaign reformers', (A group almost exclusively of the left.)

Campaigns have been regulated for as long as we were a nation. Since "the left" aren't the only one who are members of the government, the regulations you damn here cannot merely be their concern. And, like regulations of firearms, "almost exclusively" is fictional. There is broad acceptance of the campaign finance regulations though as in all cases where to drawn the line is debated.

and the First amendment. Advocates of campaign 'reform' will never be happy so long as the great mass of people retain their rights, thanks to this.

Many people, including by use of history (which you and others selectively care about), have shown how campaign regulations promote constitutional values. It is a very complicated issue with the proper lines well open to debate that would be better if some didn't use hyperbole.
 

Shag:

Lest you forget, the 1A commands: "Congress shall make no law...abridging the freedom of speech..."

There is no exception to that rather categorical guarantee for people associated into businesses.

The problem with Citizens United being a 5-4 decision is not the majority defense of the 1A, but rather that the four dissenters had no problem at all erasing the 1A guarantee for people associated into businesses.

If that dissent of four becomes a majority of five, the Court will pull out its eraser again.


 

Michael H. McConnell's article "Reconsidering Citizens United as a Press Clause Case" available at:

http://www.yalelawjournal.org/essay/reconsidering-citizens-united-as-a-press-clause-case

takes the position that the bottom line of the decision is correct but should have been based on the press clause rather than the speech clause. McConnell is critical of both the majority and the minority focussing on the speech clause and political campaign financing. McConnell thinks that campaign financing should have some restrictions as current laws unfairly favor incumbents. He points out that the Court called for the parties to address issues beyond those the parties had raised, in effect to focus on campaign financing.

The speech and press clauses are complex despite the fairly simple words that are used, as are other parts of the Constitution.
 

Patrick J. Charles & another have an interesting lengthy article (2012 - pre-Citizens United?) with a title beginning: "Saving The Press Clause From Ruin: ... " available at:

http://epubs.utah.edu/index.php/ulr/article/viewFile/949/711

that relies on history going back to Colonial days in America and is not in accord with Eugene VC's view.
 

Just checked C-SPAN & a panel on Scalia's legacy was being aired. For those interested, the video should be on the C-SPAN website.

I did not read the article linked by Shag but generally think CU need not be pigeonholed = there are various things overlapping, including speech (the message), press (the video), assembly/association (the group), petition (elections) and so forth (the Guarantee Clause etc.).
 

The Charles & another article was published post-Citizens United. The authors make reference to Citizens United but do not discuss it in detail, as the article focuses long on history. They do not seem to opine on Citizens United as a press clause case rather than a speech clause case.

Joe makes a good point. But keep in mind that the parties to a case before the Court generally provide the issues to be addressed via the trial and appeal processes. But the Court has the prerogative to go beyond the parties' issues. Here, it seems the Court may have pushed the parties on potential issues raised by the Court, issues that the Court wanted to address. Sometimes this might indicate a sense of political interest on simmering issues that some of the Justices might wish to address.
 

"The point is that it takes us from a situation where anyone can spend any amount of money they fancy to express their opinion in print, to a situation where only a government designated class retain that right."

Nonsense. It would allow every person to 'speak' by spending up to an amount that the vast majority of person's in the US don't and have no intention of ever spending in such an endeavor. That's a lot of 'speaking' still going on. All it would do is prevent a tiny fraction of wealthy potential donors from drowning out the voices of everyone else and engage in the kind of rent seeking that is terrible for this nation and our democracy.

"There is no exception to that rather categorical guarantee"

This is always a silly argument. Taken literally as you would the 1A would prevent federal laws prohibiting verbal acts of treason and material support to terrorists, threats, defamation, etc., as well as directly conflicting with other parts of the Constitution (like the copyright section). Whatever 'the freedom of speech' entails it most certainly does not mean 'Congress can make no law about people speaking/communicating.'

 

"our government has lost nearly all legitimacy by corruptly ruling beyond its constitutional and statutory bounds against the will of pluralities to majorities of the people. "

This is particularly amusing coming from a fellow whose chosen candidate to rectify that situation was roundly whupped at the nomination level by someone he regularly characterized here as a 'progressive'. Seems like pluralities to majorities of the people don't want what you're selling Bart, which might be why you'd like to turn to rule by lifetime appointed, unaccountable government officials instead.
 

The Supreme Court did go beyond the original issues in CU and had a special re-argument. The (partial) dissent argued it decided more broadly than necessary, especially given the fact based nature of some of these disputes.

Mr. W.'s point as to the fact the 1A is not absolute was made by Rick Hasen in his book promoting his overall p.o.v. I thought it a mixed bag; Zephyr Teachout's book was more readable. You can get Hasen's basic ideas via his blog/articles.
 

Off-off topic. I just watched the final episode of "The Good Wife." To me it was more soap operaa that drama. Over the years non-lawyers would tell me how much they liked the program, perhaps assuming that I agreed. But the legal issues presented, while up to date, were handled "on time" in the 45-50 minutes of each episode in between lig law firm squabbles and so many actual or potential conflicts of interest. I've heard that the series has inspired many to go into law - probably for all the wrong reasons. I'm not looking for the reactions of others, merely getting this off my chest. The last episode had more twists and turns that Chubby Checker, including David Boies, Esq. as an expert witness and the ghost of Elisha's deceased lover-lawyer. We need Jon Stewart and Stephen Colbert to two-team the election.
 

"The Supreme Court did go beyond the original issues in CU and had a special re-argument."

And, properly so, once the government argued in Court that it was entitled to ban books.

" the 1A is not absolute "

I'm so tired of arguments that essentially run, "The first amendment isn't absolute, therefore we can censor political speech." It's like saying, "The right to trial by jury isn't absolute, so we can summarily execute people."

Core political speech is so far from the few traditional exceptions to 1st amendment protections that it's just mad to use the existence of libel law to justify censoring the expression of political views.
 

BD: "There is no exception to that rather categorical guarantee"

Mr. W: This is always a silly argument. Taken literally as you would the 1A would prevent federal laws prohibiting verbal acts of treason and material support to terrorists, threats, defamation, etc., as well as directly conflicting with other parts of the Constitution (like the copyright section). Whatever 'the freedom of speech' entails it most certainly does not mean 'Congress can make no law about people speaking/communicating.'


I am discussing the people who can exercise the right, not the scope of the right itself.

Anglo-American law had long prohibited lies, defamation and treason, but these laws were never restricted to a particular class of people.

BD: "our government has lost nearly all legitimacy by corruptly ruling beyond its constitutional and statutory bounds against the will of pluralities to majorities of the people. "

This is particularly amusing coming from a fellow whose chosen candidate to rectify that situation was roundly whupped at the nomination level by someone he regularly characterized here as a 'progressive'.


If you have not noticed, Trump is pulling an Obama and comprehensively lying about his policies. If Trump gets elected, he will betray his followers and heaven knows what they will do.

Seems like pluralities to majorities of the people don't want what you're selling Bart, which might be why you'd like to turn to rule by lifetime appointed, unaccountable government officials instead.

If pluralities to majorities of voters supported totalitarian policy, Obama and Trump would not have to comprehensively lie.
 

And, properly so, once the government argued in Court that it was entitled to ban books.

Didn't actually say this. It noted that a specific regulation would apply to that situation. Books are "banned" under various situations such as copyrights, classified material, privileged material, etc.

Anyway, it was an "as applied" situation and the government noted that it waived any defenses on that point. This alone didn't require expanding the argument, at the very least, not first sending it back for full hearing on a more expanded point instead on the SCOTUS level doing it late in the day.

I'm so tired of arguments that essentially run, "The first amendment isn't absolute, therefore we can censor political speech." It's like saying, "The right to trial by jury isn't absolute, so we can summarily execute people."

"Essentially" is being overworked here.

The basic point is that, including by the judgment of every single justice on the Supreme Court, is that campaign finance regulations are acceptable in various ways. Ditto regulation of speech in general, including core 1A concerns.

Also, "essentially" the speech is not being "censored." Citizens United still could have released the video in various ways. The case turned on use of general corporate funds to help the effort in a certain way.

Core political speech is so far from the few traditional exceptions to 1st amendment protections that it's just mad to use the existence of libel law to justify censoring the expression of political views.

NYT v. Sullivan was about "libel law" -- it involved "core political speech." The result was that libel law was allowable but you needed "actual malice" while speech not involving public concern was treated later by a somewhat looser standard.

Three justices wanted to go further with a more absolute rule. Likewise, campaigns are regulated, have been for centuries, in various ways. The Supreme Court has accepted a range of regulations in this respect, including funding, disclosure, disclaimers, who specifically can be involved (especially government workers), rules for judicial candidates etc. etc. etc.
 

"If pluralities to majorities of voters supported totalitarian policy, Obama and Trump would not have to comprehensively lie."

That is a pretty sad spin for the fact that according to you there was a candidate with money, organization, etc., who stood for what you say pluralities to majorities stand for and he was roundly rejected. He had the money and wherewithal to point out lies from the others, it's just that the people don't want what he (and you) are selling.

"I am discussing the people who can exercise the right"

You mean like holders of copyrights?
 

BD: "If pluralities to majorities of voters supported totalitarian policy, Obama and Trump would not have to comprehensively lie."

Mr. W: That is a pretty sad spin for the fact that according to you there was a candidate with money, organization, etc., who stood for what you say pluralities to majorities stand for and he was roundly rejected. He had the money and wherewithal to point out lies from the others, it's just that the people don't want what he (and you) are selling.


Dig deeper.

I have been spending weeks arguing with Trump supporters, many of whom are fellow Tea Party folks, trying to make them see reason. Their common responses are revealing:

1) Trumpists have formed a cult of personality around the Donald which likely exceeds the one the left formed around Obama back in 2008. These folks are completely alienated from the system and view Trump as the honest truth teller because he is not a politician. In contrast, Trump's opponents are untrustworthy because they are politicians and/or because truth teller Trump has called them liars. Early on in the process, Cruz was the second choice for a majority of Trumpists because the establishment loathed him. However, after Cruz started taking the Donald to task in the debates and Trump called him a liar, the Trumpists turned hard against Cruz.

2) The Trumpists' overwhelming reason for voting for the Donald is because they completely buy into his argument that illegal aliens and foreign imports are destroying our economy and killing off jobs.

3) Secondarily, they believe that Trump actually "opposes progressivism." (Direct quote from one of my conversations) When I offered linked evidence showing Trump's past progressive positions and Cruz's consistent record of libertarian/conservative actions, they generally called me a liar or just ignored what I posted.

I am deadly serious when I call this a fascist movement. The parallels with Nazi Germany are real and scary.
 

1) Trumpists have formed a cult of personality around the Donald which likely exceeds the one the left formed around Obama back in 2008.

Lol. How does it compare to the Palin cult of personality?
 

I have to say that, while I perfectly understand the case that Trump would, despite his largely admirable position papers, govern as a liberal, and indeed think it moderately likely, the case for him being more of a fascist than Hillary escapes me.

The analogy between his positions on illegal immigration and Nazi anti-Semitism seem to me a bit of a stretch. And he's a successful businessman, not a failed artist.

Anyway, the first hard evidence on this will be his choice of VP, since that's the first Presidential policy choice he can't easily abandon on election. It will tell us a lot.
 

Brett:

The fascist and socialist political economies are variations on the same totalitarian theme and share many of the same policies. There is very little apart from immigration which separates Trump and Clinton's policy positions.

On the other hand, fascist politics scapegoat some Other for the economic suffering under what is usually a failed socialist government and offer a strong man who will punish the Other and return the nation to former glory. In sum, fascist politics adds a particularly noxious form of nationalism to their socialism. National socialism described Hitler's movement perfectly. Trump's campaign is employing text book fascist politics, Clinton is offering standard EU labor party politics of increased security through government dependence.

Most libertarians I know are appalled by Trump. What on Earth do you see in him?

 

And most libertarians are Ayn-y and Rand-y. SPAM I AM! doesn't disclose how many libertarians he knows, so it is a tad of a problem quantifying his claim of most of them being appalled by Trump. Perhaps we'll get a better idea months from now as to how many votes the Libertarian Party candidate gets. I'm not quite sure of my memory, being a geezer, but was it about 1% of the total vote in 2012? As for what Brett sees in Trump it may be the same as David DuK-K-K-e sees in Trump.
 

Well, for starters, he's not, so far as we know, either a Stalinist or a felon.

He's a successful businessman. Granted, a successful businessman in a mixed economy, and one who has taken full advantage of the departures from a genuine free market. This doesn't necessarily mean he likes those departures. He may just be very pragmatic. But, as a businessman, he's spent his life having to benefit other people in order to make money. Unlike his likely opponent.

He has been operating in an environment where in order to succeed, (And his overwhelming drive is to be seen as a success; The man has issues.) you have to visibly hold the right, (Which is to say, the left) positions.

I think it's at least possible that, in a different environment, he might act on different views. The chameleon changes it's color as the background changes. His overwhelming drive is to be seen as a success in everything he does, and that might drive him to pursue good policies.

Might. I have no confidence in this. I am, however, confident Hillary would put the US up for sale to the highest bidder.
 

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Sorry for the deletions -- moving on.
 

I'm surprised that Brett's list of reasons that he "might" support Trump failed to include a cause that Brett commented on in the past: to wit, the high suicide rates of older divorced white men. I thought Brett might believe that Trump would be inspirational in reducing that rate, being twice divorced and thrice married, twice going international in the Marriage Department, thus a role model for that group.

Brett has been inspired by Trump's wealth and business successes, perhaps admiring Trump's self-funding his campaign. But now it is reported Trump the billionaire now wants donors to fund the rest of the campaign (including paying back Trump's loans of some $40 million), trying to work out a deal with the GOP as Trump seems unwilling to continue self funding. Perhaps this is really a sign that Trump knows he's in trouble and doesn't want to take a haircut on the $40 millions he loaned. Let's see how the art of this deal works out.

Now, moving on ....

I have been rechecking Jack Balkin's post on the Trump blame game since noting his update on Orin Kerr's position contra to Ilya, expecting further updates on Randy Barnett's blaming of CJ Roberts for Trump. Alas, despite my earlier "hints," Jack has not commented on Randy's take. But over at the VC, there have been several back and forths between Orin and Randy on blaming the CJ for Trump. Is there a "civil war" at the VC? Jack could serve as an arbitrator.
 

Here's an update on Larry Solum's "Originalist Methodology." over at the Originalism Blog Mike (I'm not Rappaport) Ramsey posts, belatedly, on this paper with this editorial comment:

:"I particularly endorse the last two sentences of the first paragraph." Here's the first paragraph:

***

“Originalism” is a family of contemporary theories of constitutional interpretation and
construction that share two core ideas. First, the communicative content of the
constitutional text is fixed at the time each provision is framed and ratified—the Fixation
Thesis.1 Second, constitutional practice should be constrained by that communicative
content of the text, which we can call the “original public meaning”—the Constraint
Principle.2 Other matters (e.g., original intent versus original public meaning) are debated
by contemporary originalists.

***

But how does Mike feel about the "Fixation Thesis"? Does Mike have constraints about it? As for the last sentence of the paragraph, Mike's endorsement tacitly admits that the originalism family can be like a Tower of Babel.
 

If you didn't put more effort into halfway successful efforts to be witty, than into understanding what other people were saying, you wouldn't be surprised.

He's running for President. Divorce isn't a federal matter.
 

Brett:

German big business owners supported the Nazis and had no major problem with fascism because they could use the government to grow their business and destroy their competition.
 

Bart, Trump could be a fascist. But it strikes me as hysterical to act as though this were proven, rather than just a moderately remote possibility.

By contrast, Bernie IS a Stalinist. Hillary IS a felon. Already established, not speculation.

Look, I don't expect to much like a Trump administration. My favorite in the primaries was Paul, I'd have been happy to have voted for Walker... But I think we should reserve the "fascist" label for people who do more to merit it.

Take a look at his position papers. Granted, they may be destined for the circular file, MAY. But they don't look to me like the platform of a fascist.
 

Brett's:

"He's [Trump's] running for President. Divorce isn't a federal matter."

ignores a once powerful base of the GOP, the Evangelicals, who believe in "family and Christian values, and may convert to "Revengelicals" for the general election inspired by Tammy Wynette's standard as inspiration for the Christian way.

Alas, few older divorced white men had leverage for pre-nups and high-priced divorce attorneys as the Donald.
 

Brett:

Trump is likely a totalitarian, but not necessarily of the fascist flavor.

The evidence suggests that Trump is a long time progressive running a fascist political campaign. Given that his present campaign positions are often at odds with his past actions and positions, I am pretty sure Trump's fascist campaign is one long lie to get elected.
 

And the alternative is that he's a rather pragmatic guy who pretended to be liberal to keep the liberals off his back. I really don't think we have enough data to tell one way or the other, but the fact that his family seems to have turned out well is promising.

Like I said above, the first real clue will be who he picks as a VP. We should certainly have a good idea by election night, as he's going to tack HARD to the left if he really is a 'progressive'.

Bottom line, you may be right, but I think we haven't got enough data to say one way or the other at this point.
 

I'll add this: Take another look at his position papers.

Most 'progressives' don't have that much grasp of conservative views, to craft anything that appealing. The RNC doesn't! You expect a prog trying to appeal to conservatives to appeal to a progressive's stereotype of a conservative, and fail miserably at appealing to the real thing.

And yet, his position papers are quite good.

I don't think he has any sort of principle, he's a pragmatist. That can be good and bad. But it doesn't suggest he's going to be going all Mussolini on us.
 

Brett: Like I said above, the first real clue will be who he picks as a VP. We should certainly have a good idea by election night, as he's going to tack HARD to the left if he really is a 'progressive'.

Why?

Reagan chose a running mate well to his left in 1976 and then one a little less so in 1980 before bringing the most libertarian conservative administration to the White House since Calvin Coolidge.

Conversely, Obama chose a running mate to his right before bringing the most progressive administration to the White House since FDR.

I do not see the correlation.

If Trump is smart, he will draft a running mate well to his right in an attempt to unify the party he has torn in half.

If he is smarter, Trump will further attempt to unify the party and take Cruz out of the game in 2020 by publicly promising to nominate Cruz to replace Scalia. If the Donald did that, I would swallow my bile and vote for the man to save the Supreme Court and all the rights it protects.
 

Brett seems a tad squishy on Trump but responds to SPAM I AM!:

"Bottom line, you may be right, but I think we haven't got enough data to say one way or the other at this point."

Did Brett review the data on Trump's "Playboy" days and Stern show revelations on his proclivities, including "Playboy" Trump's full-Shakespearean concerns on the subject: "VD or not VD, that is the question."? The Revengelicals have, inspired by Cruz in Indiana speechifying on Trump being a serial philanderer. (By the way, I'm not good at math. How many times does 69 go into 46? Fractionally?)

There is a lot of data out there on Trump, just not enough "0s" and "1s" specialists such as Brett to put all the data together.

But Brett does make it clear that he sees eye-to-eye with Rand Paul whose dad is for the gold standard (as is SPAM I AM!).
 

"Hillary IS a felon. Already established"

By who? The Court of Brett?
 

SPAM I AM!'s advice on a Trump VP choice:

"If Trump is smart, he will draft a running mate well to his right in an attempt to unify the party he has torn in half."

But Trump has enough "street smarts" (aka NY values) to protect his back and avoid sone nutty anarcho-2nd A absolutist type from bringing a "true" conservative into power. Trump, for his own protection, would have less of a problem with a progressive VP.

And SPAM I AM!'s suggestion of what a smarter Trump might do re; Cruz would clearly prevent Trump from being elected President. And the added good news is that SPAM I AM! promises that he:

"would swallow my bile and vote for the man to save the Supreme Court and all the rights it protects."

Ironically SPAM I AM! has been complaining that the conservative majority on the Court with Scalia was not protecting rights.

By the Bybee {expletives deleted], this equivalency debate between Brett and SPAM I AM! is quite revealing on what real libertarians are really like.

 

Mr. W:

You do not have to be an attorney to apply publicly available facts to the law.
 

Shag: Ironically SPAM I AM! has been complaining that the conservative majority on the Court with Scalia was not protecting rights.

If you believe in constitutionally limited government and the Bill of Rights, the last Scalia court was the best we could hope for absent a Constitutional convention releashing government.

If Clinton and likely Trump makes their preferred choices, the Supreme Court will be reduced to a rubber stamp for an increasingly totalitarian government.
 

I thought it was established (in response to a Mr. W. comment in part) that basically everyone is probably a felon, including Brett himself. We then had a back and forth on the serious nature of HRC's alleged felony. Again, using the code book including some analysis on the meaning of legal terms. It is a legal blog after all.

I had a long reply on how the Trump analysis seemed damn subjective but it seemed repetitive and a case of diminishing returns. So moved on. Still, seems the basic point here is that some sorta like what is Trump saying (while opposing HRC's ideology) while some kinda are liking it but just don't trust him enough.

Or, perhaps a big ¯\_(ツ)_/¯ is warranted.
 

"If he is smarter, Trump will further attempt to unify the party and take Cruz out of the game in 2020 by publicly promising to nominate Cruz to replace Scalia."

If that's his aim, he'll pick Cruz as his VP, as 'earnest money'. Guarantees his removal from the Senate if the ticket is elected, which will please the Senators no end. Then nominating him to the SC after the election becomes a way of getting him out of Trump's hair, and stops him from messing with them as President of the Senate, giving them strong motive to confirm him.

Just publically promising him a SC nomination? Cheap promise, easily broken. And ripe for the DoJ to engage in some 18 U.S. Code § 599 mischief.


 

Apparently SPAM I AM! has a short memory of his rants against the Court controlled by conservatives, suggesting at times "armed revolution" as an alternative to political dysfunction./
I do believe in the Constitution as amended by the BOR and subsequent Amendments, but not as interpreted/construed by SPAM I AM! and his ilk. Limited government is an oxymoronic term in the complexity of the growth of America. Of course SPAM I AM! still would like to go back to the late 19th century's The Gilded Age, what he believes were America's best days) and return to the gold standard. Does SPAM I AM! speak for real libertarians?
 

Brett:

Trump could indeed make a promise to nominate Scalia's replacement and reneg. However, that promise would probably be enough to get me and a large number of other libertarian/conservative Charlie Brown voters to cast ballots for Trump.

I do not give a damn who Trump convinces to be a do nothing VP. Trump makes his own decisions.
 

Shag: I do believe in the Constitution as amended by the BOR and subsequent Amendments...

The reason you and nearly all other progressives are totalitarians is that you do not believe in any actual limits on progressive government policy. During your long adult life, you have never argued that the Constitution prohibits a progressive policy which you support and you never will.


 

Tell the truth, Bart: You're just hoping Trump ends up with those two years in jail for making that promise... ;)
 

Brett:

So long as we are day dreaming, my dream would be for the Justice Department to indict both Clinton and Trump, allowing the parties to nominate Cruz and Sanders.

Then I wake up, read the news and start screaming uncontrollably...

https://www.youtube.com/watch?v=yF-Rl5acQdA
 

Conservative satirist PJ O'Roarke endorsed Hillary Clinton on NPR:

I have a little announcement to make ... I'm voting for Hillary. I am endorsing Hillary. I am endorsing Hillary, and all her lies and all her empty promises,. It's the second-worst thing that can happen to this country, but she's way behind in second place. She's wrong about absolutely everything, but she's wrong within normal parameters. This man just can't be president," O'Rourke said, alluding to the nuclear codes the commander-in-chief takes control of upon assuming office. "They've got this button — this briefcase. He's going to find it.

http://www.npr.org/2016/05/09/477339063/conservative-author-pj-orourke-reluctantly-backs-clinton
 

SPAM I AM! vows:

" ...get me and a large number of other libertarian/conservative Charlie Brown voters to cast ballots for Trump."

needs quantification. But it also suggests, with his reference to that kid with the big bald head, that SPAM I AM! may be completing the Anger stage and is ready to move on to the next stage. But then again, Cruz is hinting that he just might get into the delegate chase again. Perhaps there is a Lucy-type delegate prepared to pull that political football at the last second as often done to C. Brown. (I plan to use in the future SPAM I AM!'s designation of another type of libertarian from the Peanuts" gallery.)

 

https://theentertainmentnut.wordpress.com/2016/03/19/a-peanuts-prospectus-politics-is-for-the-birds-and-beagles/
 

Thanks for the link, Joe. If Shulz were with us today, he might have employed a Cockatoo with an orange crest - and a small beak.

While I followed Peanuts, I had earlier enjoyed Pogo's politics - including environmentalism.

And after Peanuts, there has been Doonesbury. But I no longer get newspapers in hard copy because of eyesight issues, so I don't know if the strip is following the current primary "illiction" returns. Maybe I've got to Google Doonesbury, unless my people do that for me.

The current campaign has had quite a bit of comedy, with the possibility that some could die laughing - though the joke would be on US.

And speaking of political birds, we have our own SPAMA I AM! with his Chicken Little cries of: "THE SKY IS FALLING! THE SKY IS FALLING!"
 

The cartoonist late in his life befriended the author of Pearls Before Swine (Stephan Pastis, who was a lawyer first) and "Rat" running for President has some Trump-like qualities. Election humor is everywhere -- even in a recent Blondie comic.

https://safr.kingfeatures.com/idn/cnfeed/zone/js/content.php?file=aHR0cDovL3NhZnIua2luZ2ZlYXR1cmVzLmNvbS9CbG9uZGllLzIwMTYvMDUvQmxvbmRpZS4yMDE2MDUwOV85MDAuZ2lm

(Monday's strip)


 

Pastis today honored George Carlin.
 

Here's a link to a Doonesbury strip on The Donald:

http://www.gocomics.com/doonesbury/2015/04/05

This was months before Trump escalated down to the hate zone.
 

That Doonesbury link provides for Pre- orders of "Yuge! 30 years of Doonesbury on Trump." That's a coffee table book that would actually be read. This may be the data that Brett said are short [no small hands reference of either the Donald or Brett intended] on The Donald.
 

The release date for "Yuge!" according to Amazon is July 5th and may provide more fireworks than the day before. Hillary and Bernie should make bulk purchases for distribution at their rallies. Devotees of Trump may be entranced by the drawings but challenged by the text.
 

Your place is valueble for me. Thanks!… Best Source Best Source Best Source
 

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