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Read the rules in the OP before posting, please.In order to ensure that this thread continues to meet TL standards and follows the proper guidelines, we will be enforcing the rules in the OP more strictly. Be sure to give them a re-read to refresh your memory! The vast majority of you are contributing in a healthy way, keep it up! NOTE: When providing a source, explain why you feel it is relevant and what purpose it adds to the discussion if it's not obvious. Also take note that unsubstantiated tweets/posts meant only to rekindle old arguments can result in a mod action. |
Let's keep in mind that Holmes once said, "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth."
And to throw it all to shit, he authored the majority opinion in Buck v. Bell, a case in which the majority held that the forced sterilization of a mentally handicapped girl did not violate her Due Process rights 
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He adheres very closely while providing broad discretion. A contradiction of a man. And yet he upheld a lot of progressive laws that he might personally have detested. So if the question is, would he have upheld the ACA, the answer in my view is yes.
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On February 12 2015 07:58 hannahbelle wrote:Show nested quote +On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. The problem with your line of reasoning, that you conveniently ignore, is that the Constitution is a restrictive document at its founding and in its very essence. It restrains the power and scope of the Federal government. By using Holmes logic, we should recognize and respect the very tenant upon which the founders based our system of government. This was a very small Federal government, with a very small subset of powers, outside of which these rights and powers would rest in the States and the people themselves. And again, using Holmes, we should use this fact to take a very narrow and pessimistic view of any potential "line of growth" of Federal authority. This is something the court, especially its liberal members, continue to push away from, citing, as you very well did, some warped logic and interpretation of Holmes' theory.
You are perverting the basic argument to bend it into your preconceived notions of what the law should be.* Holmes viewed the Bill of Rights as the codification of rights that had been enumerated by English common law in the centuries preceding it, and that therefore there was the possibility that future rights and privileges could evolve with the society that embedded the law. You are trying to ossify a set of legally recognized ethical principles that came into existence through "activist" judges deciding, in some sense, what the law should be in a specific instance with reference to the particular facts of the case, community mores, social costs, economic thought, sociological facts, etc. Don't take this as an exercise to cram Holmes into your traditional textualist philosophy, because I can assure you that he won't fit.
*Edit:
When I say "what you think the law should be," I mean that you are resorting to legal arguments about what you think the law is and therefore what it should be. But you end up just going in circles because the law is only what an objective person thinks a court would decide in a given circumstance. You think that the law should be X because your interpretation of what it was at some point in time, or of what it was intended to be by a certain person, means that it should be X even though it turned out to be Y. But you simply misunderstood the law as it is, and any arguments couched entirely in legal language are bound to fail because they are contentless. Legal terminology is a metaphor at best for the actual experiences of people who live the law, and to make convincing arguments about how a judge should have ruled in a given circumstance you have to appeal to that experience, grounded as it is in common sense and moral intuition. Resorting to purely legalistic arguments about the raison d'etre of a ruling or would-be ruling is like engaging in arguments about why 500 angels instead of a thousand can dance on the head of a pin, or whether the human essence of Jesus was drowned out by the divine or existed as coequal alongside.
The other thing to keep in kind here is that legal arguments are always capable of going both ways on a question. Legal criticism should engage in which argument is more persuasive based on its consequences, not the eloquence of the transcendental nonsense being spouted by the attorneys. Every judicial question involves competing values, and the "ought" that the judge has to wrestle with ultimately involves a lot more than a ride on the merry go round of legal logic. That "ought" is an ethical question and evolves with the society, with an eye always towards precedent, but including how precedent should be interpreted in light of the facts on the ground.
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On February 12 2015 07:17 IgnE wrote:Show nested quote +On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. Show nested quote +On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference.
Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid.
As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook.
There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power.
So we can discuss both the rules or ideas and the rationale that is their basis.
As for the constitutionality of things, idk if I feel like trotting down that road again.
Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff.
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LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution."
Source
Also Bob Simon has died in a car crash.
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On February 12 2015 11:47 {CC}StealthBlue wrote:Show nested quote +LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution." SourceAlso Bob Simon has died in a car crash.
Holy crap... The leading favorite for the Republican presidential nomination can't answer whether he believes in evolution...
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On February 12 2015 12:04 GreenHorizons wrote:Show nested quote +On February 12 2015 11:47 {CC}StealthBlue wrote:LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution." SourceAlso Bob Simon has died in a car crash. Holy crap... The leading favorite for the Republican presidential nomination can't answer whether he believes in evolution...
I think it was actually a pretty reasonable response. It was a loaded question that I think he dodged pretty well. If he says he doesn't believe in evolution, democrats laugh him out of the country. If he says he does believe in evolution, he's got very little chance at getting the bible belt vote.
He's got a point. His personal position on evolution has got pretty much nothing to do with his whether he'd be a good president or not.
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Man, I am loving the discussion here between IgnE, xdaunt, and Introvert. I have no input but I'd love to see further discussion.
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Jails have become warehouses for poor and mentally ill people who are unable to post bail for minor infractions such as parking violations or shoplifting, according to a report published Wednesday by the Vera Institute of Justice.
The report, titled “Incarceration’s Front Door: The Misuse of Jails in America,” asserts that while public criticism has focused on the problems of overcrowding in state and federal facilities and the inhumane treatment of some inmates, the jail system is also in need of scrutiny and reform.
“Too often we see ordinary people, some even our neighbors, held for minor violations such as driving with a suspended license, public intoxication, or shoplifting because they cannot afford bail as low as $500,” Nicholas Turner, president and director of Vera, wrote in the report.
Turner said he was “jolted” by the sheer amount of Americans jailed simply because they did not have the financial means or mental capacity to post bail.
“I was startled by the numbers of people detained for behavior that stems primarily from mental illness, homelessness, or addiction,” he said.
An estimated 731,000 people are held in some 3,000 city and county jails in the U.S. on any given day, not to be confused with the state and federal prison system where convicted criminals serve their sentences. Admissions to jails nearly doubled since 1983 to reach 11.7 million per year in 2013, the report said. That’s nearly 19 times the number of annual prison admissions.
Furthermore, three of every five people in jail have not been convicted of a crime, but are being held because they are too poor to post bail while their cases are processed, the report said. The majority of them — 75 percent — are in jail for non-violent traffic, drug or public order offenses such as public drunkenness or driving with a suspended license, the report added.
In New York City, for example, nearly half the jail cases booked are for misdemeanor charges or less, the report said.
Earlier this week, civil rights groups filed lawsuits on behalf of 20 residents of two Missouri towns, alleging that local courts had been attempting to boost the cities’ coffers by jailing people in “deplorable conditions” for minor offenses.
The lawsuits claimed the plaintiffs were, in effect, being held in “debtors’ prisons” where they were being ransomed back to their families and friends for arbitrarily set fines.
Source
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On February 12 2015 12:14 Millitron wrote:Show nested quote +On February 12 2015 12:04 GreenHorizons wrote:On February 12 2015 11:47 {CC}StealthBlue wrote:LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution." SourceAlso Bob Simon has died in a car crash. Holy crap... The leading favorite for the Republican presidential nomination can't answer whether he believes in evolution... I think it was actually a pretty reasonable response. It was a loaded question that I think he dodged pretty well. If he says he doesn't believe in evolution, democrats laugh him out of the country. If he says he does believe in evolution, he's got very little chance at getting the bible belt vote. He's got a point. His personal position on evolution has got pretty much nothing to do with his whether he'd be a good president or not.
It's not really a comment on him (only total zealots outright deny evolution [It's ~100% proven as a concept, the only "doubt" is whether humans evolved or were placed on the earth in our current form, {hell even the Pope is ok with evolution}]). It's more a comment on the Republican party and the disconnect from reality.
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On February 12 2015 12:14 Millitron wrote:Show nested quote +On February 12 2015 12:04 GreenHorizons wrote:On February 12 2015 11:47 {CC}StealthBlue wrote:LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution." SourceAlso Bob Simon has died in a car crash. Holy crap... The leading favorite for the Republican presidential nomination can't answer whether he believes in evolution... I think it was actually a pretty reasonable response. It was a loaded question that I think he dodged pretty well. If he says he doesn't believe in evolution, democrats laugh him out of the country. If he says he does believe in evolution, he's got very little chance at getting the bible belt vote. He's got a point. His personal position on evolution has got pretty much nothing to do with his whether he'd be a good president or not.
This is the kind of ridiculous conservative rationalization that I've been seeing recently. Anyone who has aspirations about running for president shouldn't have to make a statement about if they believe in evolution or not, and even if the question is asked, the immediate answer should be, "Why yes, I am not delusional".
Evolution is a scientific theory and the fact that his refusal to actually respond in if he "believes" in it or not has to be rationalized in some way is completely mind-blowing and utterly ridiculous.
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On February 12 2015 08:37 Skilledblob wrote:
I am sorry if this question is stupid, and it probably is, but why do so many americans put so much weight into what a group of people thought would be a great government 200 years ago? Especially this near religious reverance of your "founding fathers" by some groups is what confuses me greatly.
The world changed so immensely in the years after your constitution was written but still I see people especially from the right argue about modern issues with ideas that are two hundred years old and when those ideas were written down had no idea about the problems we would face today.
When I see americans saying the "founding fathers" would never have wanted A, B or C. I always tell myself how do you know? Those men when they were alive never heard about universal healthcare for example.
Because they were legislative geniuses of an incomprehensible level. They wrote a 4,400 word document to create a form of government nowhere seen before in the world with a written constitution, equally unheard of. They invented modern democracy. The rest of the world tried to emulate us (or didn't, in many cases) and largely failed. With a handful of exceptions, the next 40 years had precious little in the way of parallels that didn't totally dissolve and fail a la France.
Yes, it's not the best constitution in the world. But the other constitutions of the world were all inspired by the US one to some extent, and several important ones were written under US guidance. It's the oldest and most proven. Is it blunt, perhaps inefficent? Maybe. Did the original draft have huge problems? Of course, and the founders were the first to acknowledge that. But it's not just that "it works." It's that it works better than anyone could have ever expected it to.
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On February 12 2015 12:14 JinDesu wrote:
Man, I am loving the discussion here between IgnE, xdaunt, and Introvert. I have no input but I'd love to see further discussion.
+1, really thought provoking tonight. And as an added bonus, it's relatively free of any condescension or personal attacks! Pretty uncommon here.
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On February 12 2015 12:47 Stratos_speAr wrote:Show nested quote +On February 12 2015 12:14 Millitron wrote:On February 12 2015 12:04 GreenHorizons wrote:On February 12 2015 11:47 {CC}StealthBlue wrote:LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution." SourceAlso Bob Simon has died in a car crash. Holy crap... The leading favorite for the Republican presidential nomination can't answer whether he believes in evolution... I think it was actually a pretty reasonable response. It was a loaded question that I think he dodged pretty well. If he says he doesn't believe in evolution, democrats laugh him out of the country. If he says he does believe in evolution, he's got very little chance at getting the bible belt vote. He's got a point. His personal position on evolution has got pretty much nothing to do with his whether he'd be a good president or not. This is the kind of ridiculous conservative rationalization that I've been seeing recently. Anyone who has aspirations about running for president shouldn't have to make a statement about if they believe in evolution or not, and even if the question is asked, the immediate answer should be, "Why yes, I am not delusional". Evolution is a scientific theory and the fact that his refusal to actually respond in if he "believes" in it or not has to be rationalized in some way is completely mind-blowing and utterly ridiculous.
Slice it down the middle - it was a stupid answer to a stupid question.
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On February 12 2015 09:38 IgnE wrote:
He adheres very closely while providing broad discretion. A contradiction of a man. And yet he upheld a lot of progressive laws that he might personally have detested. So if the question is, would he have upheld the ACA, the answer in my view is yes.
He probably would have upheld the ACA, though it is unclear whether he would have done so on commerce clause grounds. Commerce clause jurisprudence evolved a lot as soon as he retired. Regardless, there is no doubt that he would have struck down the constitutional right to abortion and all of the other right to privacy-based cases.
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On February 12 2015 10:52 Introvert wrote:Show nested quote +On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff.
The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above.
Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law.
So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do.
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On February 12 2015 13:01 coverpunch wrote:Show nested quote +On February 12 2015 12:47 Stratos_speAr wrote:On February 12 2015 12:14 Millitron wrote:On February 12 2015 12:04 GreenHorizons wrote:On February 12 2015 11:47 {CC}StealthBlue wrote:LONDON -- Wisconsin Gov. Scott Walker (R) on Wednesday dodged a question about whether he believes in evolution.
Speaking at the Chatham House foreign policy think tank London, Walker was asked: "Are you comfortable with the idea of evolution? Do you believe in it?"
"For me, I am going to punt on that one as well," he said. "That's a question politicians shouldn't be involved in one way or another. I am going to leave that up to you. I'm here to talk about trade, not to pontificate about evolution." SourceAlso Bob Simon has died in a car crash. Holy crap... The leading favorite for the Republican presidential nomination can't answer whether he believes in evolution... I think it was actually a pretty reasonable response. It was a loaded question that I think he dodged pretty well. If he says he doesn't believe in evolution, democrats laugh him out of the country. If he says he does believe in evolution, he's got very little chance at getting the bible belt vote. He's got a point. His personal position on evolution has got pretty much nothing to do with his whether he'd be a good president or not. This is the kind of ridiculous conservative rationalization that I've been seeing recently. Anyone who has aspirations about running for president shouldn't have to make a statement about if they believe in evolution or not, and even if the question is asked, the immediate answer should be, "Why yes, I am not delusional". Evolution is a scientific theory and the fact that his refusal to actually respond in if he "believes" in it or not has to be rationalized in some way is completely mind-blowing and utterly ridiculous. Slice it down the middle - it was a stupid answer to a stupid question.
It should be a stupid question but his answer kind of highlights why for some reason it still isn't in large swaths of the country. Namely the people he needs to vote for him to have a remote shot at winning.
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On February 12 2015 13:08 xDaunt wrote:Show nested quote +On February 12 2015 09:38 IgnE wrote:
He adheres very closely while providing broad discretion. A contradiction of a man. And yet he upheld a lot of progressive laws that he might personally have detested. So if the question is, would he have upheld the ACA, the answer in my view is yes. He probably would have upheld the ACA, though it is unclear whether he would have done so on commerce clause grounds. Commerce clause jurisprudence evolved a lot as soon as he retired. Regardless, there is no doubt that he would have struck down the constitutional right to abortion and all of the other right to privacy-based cases.
I think there is some doubt. Maybe he would have, maybe he wouldn't have. Maybe he wouldn't have in the 70's but he would have if it came up in the 2000's. He was complicated.
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On February 12 2015 13:26 IgnE wrote:Show nested quote +On February 12 2015 10:52 Introvert wrote:On February 12 2015 07:17 IgnE wrote:On February 12 2015 01:05 xDaunt wrote:On February 11 2015 21:42 IgnE wrote:+ Show Spoiler +On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote:
That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day." I think it would benefit textualists to read and grapple with Holmes, particularly his "The Path of the Law" and the way he tries to get away from the transcendental nonsense of legal writing and move towards a "functional method." You can make flippant remarks about the "penumbras of the Constitution" if you want, but the only criticism, in my view, that should be directed towards those decisions is the rationale of the decision per se. The mistake comes in taking these rationales seriously, rather than understanding them as a particular application of meaningless concepts or, at best, metaphors for the implicit (real) rationale that led to the decisions. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." - Oliver Wendell Holmes Jr. He goes on to say: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space."Rather than arguing about actual nonsense (i.e. the circularly defined legal concepts, transcendental principles divorced from actual experience) we should be arguing about two things only. One is, "How do courts actually decide cases of a given kind?" The other is, "How ought they to decide cases of a given kind?" But in answering these questions we should be talking in terms of physical facts, social relations, questions of ethics and morality, and not wasting time talking about the judicial equivalent of "How many angels can dance on the head of a pin?" When you think about the Supreme Court cases dealing with abortion law or gay marriage as patterns of judicial behavior, behavior which affects human lives for better or worse and is therefore subject to trenchant moral criticism, a lot of these supposed concerns about Constitutional interpretation you have become effectively meaningless. Let's speak in plain terms about what the law is, how the court decides what it is, and what it should be. But arguing entirely within the confines of nonsensical legal terminology against a ruling ignores the reality of law. It ends up looking like a cover for sentiments that you would rather not venture in public: "I don't think abortion should be legal," or "I don't think gay marriage should be legal." And to continue to argue against abortion or gay marriage or any other issue on a particular arcane legal grounds, rather than based on facts, interpersonal relations in the world, social costs, or moral sentiments, is plainly absurd, not only because you are playing an artificial game of words in some warped Platonic headspace, but because you are also ignoring the underlying realities of what the law is. Justices go looking in the penumbras of the Constitution because American law is based on a peculiar mixture of interpretation, precedent, and community opinion, and has always been so. Judges should be taking into account extralegal considerations like the sociological or economic facts which give force and significance to decisions and to the law itself. All legal questions decided by judges are inescapably ethical questions, and a judge's response to those questions are functions of his beliefs about interpretation, precedent, consequences, etc. In many cases, legal fetishism only serves to hide from view the ethical character of every judicial question. The decision that follows is a social event. To protest that legal questions are decidedly legal and so should be decided only with reference to the law, betrays a misunderstanding of what the law is. " The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."Of course, I am not saying that you don't recognize those rulings as the law, but it is interesting to me that conservatives tend to make legal arguments that a certain decision should have gone the other way, while lefties tend to make moral or practical arguments that a certain decision should have gone the other way. Legal arguments, shrouded in obscurity, circularity, and vehement interpretations of old texts end up being only empty metaphors, devoid of ethical or pragmatic force because they take the game of legal wordplay seriously. It just gets funnier when conservatives present these legal arguments to lay people, who hear them and sense their fatuousness without necessarily being able to parse the nonsense. Conservatives used to trot out the "natural law" argument, and still do on occasion, but at least those tended to be arguments grounded in the mores of the community, and were commonly used as arguments against certain legal precedents, statutes, or laws. In any case it's a bit tiresome to hear all the blather about "activist" judges profaning the constitution every time Scalia is on the losing side. We aren't lawyers here presenting before a judge, we are members of the public considering and discussing the court's decision. In one sense we are putting ourselves in the position of the realistic judge, and we shouldn't fool ourselves by judging decisions upon the particular application of circular reasoning about the presence or absence of corporations, property rights, titles, contracts, torts, or whatever else. Legal criticism should seek to understand the objective results of a decision (i.e. how it will affect application of law by other courts and how that will affect the public) and to articulate a theory of values. Great post. I can't really do it justice with a good response right now. However, I find it curious that you're citing Holmes when I'm pretty sure that he'd generally agree with me. Maybe. Maybe not. Depends on the issue. On February 12 2015 05:11 Introvert wrote:
Legal wordplay is taken seriously because it has serious consequences, not because people are trying to be obscure.
We have a system designed to separate power and protect the rights of the people. So when those in charge start making decisions based on what they think and not what the highest law says (i.e. the Constitution) it is cause for concern.
So it has nothing to do obscurity, but it's the thought that these decisions are best made through an orderly process with some underlying rationale that relates to the agreed upon method and rules. Conservatives may not get to moral arguments because the rules of the game have to be established and respected before play commences.
Besides, look at abortion- it only comes up in legal arguments online because the moral one is a complete crap show.
Edit: typos. You can be serious without talking about gibberish. There were serious consequences when talking about certain theological concepts hundreds or thousands of years ago as well, that doesn't lend credence to the concepts themselves. The underlying rationale is bunk in many cases. Maybe the reason conservatives don't "get around to" the moral arguments are because moral argument is a rhetorical art that rests on persuasiveness, rather than the cold logic of science. But you are kidding yourself if you think legal argument is scientific. Terms like "corporation," "property rights," "fair value," and "due process" are not defined either empirically nor justified by ethical or social fact, they are simply creations of law that usually prevent intelligent discussion about a topic. Finding a property right in a Trademark because a property right is found to exist where someone creates something valuable is circular. American Chemical Co. v. Moore, 17 F.(2d) 196 (M.D. Ala. 1927).** Without the court's protection of the property right in the first place, trademarks would never be valuable. But instead of discussing the economic and political questions that bear on whether we should create a property right in favor of someone over someone else, we get ridiculous circular rationales. And so with the Constitution we get Holmes saying: "The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth." (emphasis added). Something that is sure to bother textualists, but would seem normal to almost anyone steeped in the tradition of Common Law. **- "In which [. . .] a fertilizer company is granted an injunction against state officials seeking to prevent the use of a misleading trade name. The argument is: The plaintiff expected to do a large business this trade name: such expectations are property, and must be protected against governmental interference. Well of course these terms aren't scientific, but they aren't entirely arbitrary either. As you have pointed out, we have a tradition that we rely on to help us with these things. Even scalia himself that a strict constructionist view is stupid. As many are fond of reminding, just because it's law doesn't make it right or reasonable, but we all have to agree to a set of rules. It's not like chess- there is some ambiguity, but in the case of the US it doesn't seem to me that judges are supposed to invent new things wholecloth, and generally they don't. They prefer the shoehorn method. We have rules for changing the rules in the rulebook. There is an order to the system, so when the president takes a new power or the justices create a new right, we need to evaluate these things based on what we already know. Just because times change doesn't mean we ignore the rules. I personally think that the constitution was wtitten quite well- it's strict un it's limits but broad in it's power. So we can discuss both the rules or ideas and the rationale that is their basis. As for the constitutionality of things, idk if I feel like trotting down that road again. Sorry for typos, etc. On my phone, and it appears to be doing things that repeating words and stuff. The terms aren't scientific, and they are, in fact, arbitrary. The property rights example I mentioned above is just one of many. Another example are legal terms dealing with corporations. The courts have asked, "Where is a corporation?" or "When is a corporation?" One might think these are foolish questions, but when you have arbitrarily defined a corporation as such and such within the law, you have to go on producing absurdities when cases come before you and lawyers ask questions like the above. Is a corporation able to be sued because it is a person? Or do you just call it a person in legal terms because the courts have decided it can be sued? There is a substantive difference there. If it's the latter, why go on talking about it as if it were a person? Persons are located in space and time, corporations are not. We could have lawyers and judges approaching legal problems from a functionalist perspective, by perhaps making factual inquiries into why corporations incorporate in certain states, how they do business, the tradeoffs of allowing consumers to sue corporations in their home state and forcing corporations to defend themselves in far-off districts, where they employ people, etc. Instead we have nugatory exhortations from lawyers about some precedent involving non-corporate persons and post-facto rationalizations by the courts about where and when a corporation is, or whether it can even be in two places at once. In one case a court will find that having offices that a corporation conducted transactions out of meant that it corporate person was really there where the offices were, while in another case it will find that having a team of sales people residing and doing business in the state does not amount to the corporate person actually being in the state. There are numerous other examples of course, in other areas of law. So yes, we can discuss both the rules and the rationale, but to pretend that the rationale as most often given by the courts is a meaningful rationale doesn't make it so. There were hundreds of years of theologians arguing about whether Jesus was one person or two persons, or whether he had one nature or two natures, and what those natures were. Tradition alone does not make something a meaningful discourse. We need to call things by what they do.
I agree to an extent, just because the Court declares something for some reason doesn't make it right or rational.
But I'm kind of going back to something we've discussed before, which is order. I think the government is most effectively used and constrained when it relies more on following the logical train of what came before.
So when you say "We need to call things by what they do" I think we are, because how we get somewhere actually matters, espeically since in our system it can alter the future.
[I'm removing this example because I think we'll go off track. It has a lot of holes anyway.]
So I agree- just because a Court says it doesn't make it meaningful, but the way a Court (or any lawmaking/lawreading body) goes about deciding something has a real effect down the line.
Maybe if we had a different system it wouldn't matter so much, but that's not the case.
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WASHINGTON — The F.B.I. director, James B. Comey, on Thursday will wade into the national debate about the relationship between police officers and African-Americans that was highlighted by the fatal shooting of an unarmed black man in Ferguson, Mo., in August. It will be the first time one of the bureau’s directors has publicly addressed the issue of race at length.
In a speech at Georgetown University, Mr. Comey is expected to say that much research shows that people in a society with a majority of whites unconsciously react differently to blacks. The text of Mr. Comey’s speech has not been released by the F.B.I., but several bureau officials described parts of it.
He also plans to say that in areas where nonwhites commit a majority of the crimes, law enforcement officers can become cynical and develop mental shortcuts that lead them to more closely scrutinize members of minority groups.
Mr. Comey is expected to say that most police officers are not racists, and that they chose their profession because they wanted to help protect others, regardless of whether those people are white, black or another ethnicity.
Chuck Wexler, the executive director of the Police Executive Research Forum, said that by addressing race, Mr. Comey was beginning “to show how he’s a much different F.B.I. director than the previous ones.”
Previous directors have limited their public comments about race to civil rights investigations, like into murders committed by the Ku Klux Klan and how the bureau wiretapped the Rev. Dr. Martin Luther King Jr. The surveillance of Dr. King is considered one of the F.B.I.’s greatest overreaches of power.
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