Supreme Court rules corporate contributions can't be limited

[Cali Coug]

Originally Posted by Tex

I've already done that. Do a search.

Although technically I'm not an originalist, or anything else. I'm just a computer programmer who is a complete legal layman. But I like what I read about it.



Sort of reminds me of the 5-4 Heller ruling a while back when DC tried to parse the "right to bear arms". Only then, they were trying to say that it didn't apply to individuals, but only militias. Judicial activists mold the constitution to fit whatever it is they're trying to do.

The point isn't that liberals don't "mold the Constitution," almost assuredly they do based on their views and paradigms, it is that so too do conservatives. Originalism doesn't fail because it is a totally flawed form of interpretation, it fails because it is incapable of meeting the standard of "best form of interpretation available."

[Tex]

Originally Posted by Cali Coug

The point isn't that liberals don't "mold the Constitution," almost assuredly they do based on their views and paradigms, it is that so too do conservatives. Originalism doesn't fail because it is a totally flawed form of interpretation, it fails because it is incapable of meeting the standard of "best form of interpretation available."

Well that's a very subjective analysis. It's akin to the old quote attributed to Churchill, "Democracy is a terrible form of government except for all the others." I'm sure there's somebody out there who thinks Communism is best. *Shrug* Ok.

The point is, originalists have rules that they follow because it forces them to limit the scope of their intrepetation. It's not perfect, but it's a framework that lends itself to restraint.

Judicial activists have no such rules. They just pick and choose whatever arguments suit them based on the whims of the moment, as suggested by Earl Warren's nasty little phrase, "the evolving standards of decency." That's what can lead the court to bafflingly insist the death penalty is unconstitutional even though it's mentioned in the Constitution. Or to insist there's a right to abortion even though it's clearly not, and in fact, was illegal in every state for 200 years.

But tsk, tsk, look at you ... you've gotten me to repeat myself again. Go back and read that old thread, and pretend you're making your arguments all over again. I'm sure it will send a thrill up your leg.

[UtahDan]

Originally Posted by MikeWaters

what's the counter argument? That congress has the ability to restrict corporate and union funded speech in any way it sees fit?

Only an individual alone has the unrestricted right to free speech?

It is precisely that some groups of individuals are too powerful to be permitted to speak.

[Cali Coug]

Originally Posted by Tex

Well that's a very subjective analysis. It's akin to the old quote attributed to Churchill, "Democracy is a terrible form of government except for all the others." I'm sure there's somebody out there who thinks Communism is best. *Shrug* Ok.

The point is, originalists have rules that they follow because it forces them to limit the scope of their intrepetation. It's not perfect, but it's a framework that lends itself to restraint.

Judicial activists have no such rules. They just pick and choose whatever arguments suit them based on the whims of the moment, as suggested by Earl Warren's nasty little phrase, "the evolving standards of decency." That's what can lead the court to bafflingly insist the death penalty is unconstitutional even though it's mentioned in the Constitution. Or to insist there's a right to abortion even though it's clearly not, and in fact, was illegal in every state for 200 years.

But tsk, tsk, look at you ... you've gotten me to repeat myself again. Go back and read that old thread, and pretend you're making your arguments all over again. I'm sure it will send a thrill up your leg.

The "rules" don't bind them whatsoever, particularly when the judge is the one deciding which "rule" to follow. Which founder should the judge look to? The one he wants. Which word should carry more weight? The one he wants. When is the founding anyways, and who are the founders? The one(s) he wants. And then when he doesn't find any he likes, he doesn't use originalism at all.

Some rules. You can call that an anchor for judicial interpretation (as many originalists have), but that analogy only works if you are running in deep water and the anchor can't reach the ocean floor. Sure, you dropped something down from the ship, but why?

[Tex]

Originally Posted by Cali Coug

The "rules" don't bind them whatsoever, particularly when the judge is the one deciding which "rule" to follow. Which founder should the judge look to? The one he wants. Which word should carry more weight? The one he wants. When is the founding anyways, and who are the founders? The one(s) he wants. And then when he doesn't find any he likes, he doesn't use originalism at all.

Funny, I've never heard any originalist describe his thinking this way, nor have I ever read anything like it in a formal opinion. One might suspect you just made it all up ...

[Cali Coug]

Originally Posted by Tex

Funny, I've never heard any originalist describe his thinking this way, nor have I ever read anything like it in a formal opinion. One might suspect you just made it all up ...

Interesting. If that isn't the case, then surely you can point me to the rule which dictates how to determine the answers to the questions I posed above. Surely there is a written rule instead of individual decision-making, right?

[Tex]

Originally Posted by Cali Coug

Interesting. If that isn't the case, then surely you can point me to the rule which dictates how to determine the answers to the questions I posed above. Surely there is a written rule instead of individual decision-making, right?

*Shrug* Maybe, I don't know. I'm not a lawyer. Maybe there's some written guidelines out there. Maybe start by studying Scalia and Thomas's opinions.

I do disagree with the premise a little. If deciding cases were as easy as boiling them down to a set of rules, then what do we need you for*? We could stick all case data in a computer and churn out the decision. Man, wouldn't that be great ... force all you bright attorneys to go out and actually contribute to society.

*Meaning lawyers, not you personally.

[Cali Coug]

Originally Posted by Tex

*Shrug* Maybe, I don't know. I'm not a lawyer. Maybe there's some written guidelines out there. Maybe start by studying Scalia and Thomas's opinions.

I do disagree with the premise a little. If deciding cases were as easy as boiling them down to a set of rules, then what do we need you for*? We could stick all case data in a computer and churn out the decision. Man, wouldn't that be great ... force all you bright attorneys to go out and actually contribute to society.

*Meaning lawyers, not you personally.

Precisely. It isn't written. The "rules" of originalism are totally subjective. Who to listen to, who to avoid, when the applicable period for review ought to be, whose definition of a term controls, etc. And because those "rules" aren't written (and really can't be), even within the broad framework of originalism you have tremendous latitude to accomplish most anything you want from a results perspective, which is what lawyers (and judges) try to do all the time (as well as persuade others which "rules" should be valued over others).

Sounds like you have seen the light.

[Tex]

Originally Posted by Cali Coug

Precisely. It isn't written. The "rules" of originalism are totally subjective. Who to listen to, who to avoid, when the applicable period for review ought to be, whose definition of a term controls, etc. And because those "rules" aren't written (and really can't be), even within the broad framework of originalism you have tremendous latitude to accomplish most anything you want from a results perspective, which is what lawyers (and judges) try to do all the time (as well as persuade others which "rules" should be valued over others).

Sounds like you have seen the light.

Any judicial philosophy can be abused or bent in the hands of unscrupulous lawyers, including originalism, a point which Scalia himself has made. Your reasoning--originalism isn't perfect, ergo it's results-oriented--is a non sequitur. You've created a nonsensical arbitrary standard.

But how about we refocus here, because we're retreading old discussions (which maybe thrills you, but it bores me):

You claim the decision "can't be [defended] on the grounds of originalism. Not that Scalia or Thomas actually care." Did you happen to notice that Scalia wrote a concurring opinion, in which he specifically makes the originalist case? Did you notice that, in fact, he attacks an attempt by Stevens to make an originalist argument against the court's decision? If you did, your assertion seems quite perplexing. If you didn't, you may want to try actually reading the opinions the court issues before assuming what is or is not in them.

[Cali Coug]

Originally Posted by Tex

Any judicial philosophy can be abused or bent in the hands of unscrupulous lawyers, including originalism, a point which Scalia himself has made. Your reasoning--originalism isn't perfect, ergo it's results-oriented--is a non sequitur. You've created a nonsensical arbitrary standard.

But how about we refocus here, because we're retreading old discussions (which maybe thrills you, but it bores me):

You claim the decision "can't be [defended] on the grounds of originalism. Not that Scalia or Thomas actually care." Did you happen to notice that Scalia wrote a concurring opinion, in which he specifically makes the originalist case? Did you notice that, in fact, he attacks an attempt by Stevens to make an originalist argument against the court's decision? If you did, your assertion seems quite perplexing. If you didn't, you may want to try actually reading the opinions the court issues before assuming what is or is not in them.

Yes, I did note the concurring opinion. I didn't say they would try to defend it on the grounds of originalism, I said it isn't defensible on the grounds of originalism (a point which is true whether or not they tried to do it).

Even Scalia seemed to note the sad state of his position. See this argument, for example:

Even if we thought it proper to apply the dissent’s approach of excluding from First Amendment coverage what the Founders disliked, and even if we agreed that the Founders disliked founding-era corporations; modern corporations might not qualify for exclusion. Most of the Founders’ resentment towards corporations was directed at the state-granted monopoly privileges that individually chartered corporations enjoyed.3 Modern corporations do not have such privileges, and would probably have been favored by most of our enterprising Founders—excluding,perhaps, Thomas Jefferson and others favoring perpetuation of an agrarian society.

At least he didn't try to state his position as an absolute certainty- which would have been a complete fabrication. Instead he just bumbles along with "probably" and "maybe" before ultimately reaching his conclusion of "it's definitely what the founders would have wanted."

And yes, Stevens did bring up originalism in a transparent attempt to goad Scalia into defending his opinion on originalist grounds. It worked, and you can bet Stevens is having a good laugh about it. He even got Scalia to say his originalist interpretation is "probably" right, so long as you exclude "Jefferson" and "others favoring perpetuation of an agrarian society" (which was a fairly large component of the Republican Party at the time of the founding). Not that he is just picking and choosing the evidence which fits best with his narrative- right? That would, after all, be "results oriented."

My argument on originalism, by the way, isn't that "originalism isn't perfect, ergo it's results-oriented." I am pretty confident you already know that, given that "we're retreading old discussions" here, so I will chalk this up as a dishonest attack and move on.