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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. |
On February 11 2015 12:45 hannahbelle wrote:Show nested quote +On February 11 2015 12:24 {CC}StealthBlue wrote:The world's largest solar plant began producing electricity this week in California’s Riverside County desert, as a series of successful, federally-backed utility projects show sunlight becoming an increasingly competitive energy source.
Gov. Jerry Brown has called on California to increase green electricity up to 50 percent by 2030, up from the current goal of 33 percent by 2020. His call came about a month before Monday’s dedication of the Desert Sunlight Solar Farm — which can power up to 160,000 homes.
The majority of state governments now require a significant portion of electricity to come from renewable sources, and President Barack Obama has pledged action to speed a transition to clean energy.
"Solar projects like Desert Sunlight are helping create American jobs, develop domestic renewable energy and cut carbon pollution," U.S. Interior Secretary Sally Jewell said in a statement issued Monday. "I applaud the project proponents for their vision and entrepreneurial spirit to build this solar project, and commend Gov. Brown for implementing policies that take action on climate change and help move our nation toward a renewable energy future."
The project’s launch follows the opening of the Ivanpah Solar Electric Generating System — which can power up to 140,000 homes — last year in California’s Mojave Desert. Nationwide the U.S. Bureau of Land Management has approved 52 large renewable energy projects, including 29 solar plants, since 2009.
Desert Sunlight is constructed on about 4,000 acres of federal land and is owned by NextEra Energy Resources, GE Energy Financial Services and Sumitomo Corporation of America. First Solar, an Arizona-based energy company, is building and operating the plant, according to the California Energy Commission.
The project was made possible through federal loan guarantees amounting to $1.5 billion. The Energy Department said Monday it has provided a total of $4.6 billion in such guarantees to support five large photovoltaic solar projects including Ivanpah in the Southwest, at a time when developers were struggling to obtain financing.
Commercial lenders were not willing to approve loans for such projects because solar plants had not been built at that large a scale in the U.S. before, the Department of Energy said on its website. It said all five projects for which it provided loan guarantees are generating clean electricity and repaying loans.
Today the United States has enough solar projects to power 1.4 million average American homes, according to the Department of Energy. Source With $4.5B in federal subsidies, I could be a profitable electricity generator too. Good to see my tax dollars going to such fine uses. We are due for another Solyndra any day now...
Oh no, the federal government is spending money to enhance a strategic sector to break the back of Russian, Saudi and Venezuelan dictatorships. How evil.
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And on top it is good for the enviorment and general technological developement.
THOSE BASTERDS!
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Lets just w8 and see. The real question is "Is this technology efficient enough to be profitable without governemnt grants?".
I am glad that they are switching from silicon based photovoltaic technology but producing multilayer thin films still requires large amounts of energy. I hope they are producing more than they are using for panel production.
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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.
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Cayman Islands24199 Posts
is jon stewart really taking a for realz reporter/caster job?
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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.
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On February 11 2015 21:50 oneofthem wrote:
is jon stewart really taking a for realz reporter/caster job?
highly doubt it
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Canada11218 Posts
I'd guess he's going into directing. I suspect last year he was testing the waters to see if he could do it/ whether he liked it.
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I'd rather he stay on the daily show than go directing movies that only occasionally come out. Maybe he could run for president.
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On February 11 2015 21:42 IgnE wrote:Show nested quote +On February 10 2015 14:44 xDaunt wrote: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." + Show Spoiler +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.
A more eloquent way of putting what I have been suggesting. Particularly this part:
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.
In Scott Walker news: An open letter from the actual teacher of the year (as opposed to the person Walker said it was and was fired)
Dear Governor Walker:
I was both surprised and bewildered last week when I saw a news clip of you stumping in Iowa about Megan Sampson, whom you called “The [2010] Outstanding Teacher of the Year in my State.” This was baffling to me since in 2010, I was named Wisconsin High School Teacher of the Year.
And so, as one of the bonafide 2010-2011 Wisconsin Teachers of the Year, I feel the need to engage in one of the most valuable skills we teach our students, critical analysis.
Verified by multiple news sources, it turns out that Megan Sampson did win an award in 2010, but it was the Nancy Hoefs Memorial Award given by a relatively small organization of Wisconsin English teachers (WCTE) for “an outstanding first year teacher of language arts.” She was one of less than a dozen teachers across the state who self-nominated for this award.
You failed to mention these details as you used Sampson’s lay-off from her first year teaching position as an opportunity to bash Wisconsin schools on the national stage. You blamed the seniority system for Sampson’s lay-off when, in good conscience, you should have done some serious soul searching and placed the blame squarely on your systematic defunding of public education to the tune of $2.6 billion that you cut from school districts, state aid to localities, the UW-System and technical colleges.
How our paths have diverged from that August afternoon in 1986. True story: it was freshman orientation just outside Memorial Union. We were two of a couple thousand new Marquette University freshman wistful about what our futures held. Four years later, I graduated from Marquette and later became Wisconsin High School Teacher of the Year. You never graduated, and you became the Governor of the State of Wisconsin bent on dismantling public education. Ironic, isn’t it? Situational irony at its best. I’d laugh if its ramifications weren’t so utterly destructive for the state of Wisconsin.
Source
From the actual teacher Walker was using to advance his anti-union agenda.
Megan Sampson wasn't looking for attention.
But the English teacher at Wauwatosa East High School sure got some Thursday when she was singled out in a Wall Street Journal op-ed piece by Gov. Scott Walker, who used Sampson's story to champion ending collective bargaining in Wisconsin. [...]
Sampson said Thursday she felt uncomfortable with the governor using her experience to push an agenda.
"My opinions about the union have changed over the past eight months, and I am hurt that this story is being used to make me the poster child for this political agenda," Sampson said. "Bottom line: I am trying to do my job and all this attention is interference and stress for me."
Source
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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.
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On February 12 2015 01:05 xDaunt wrote:Show nested quote +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.
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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.
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.
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Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
The Federalist No. 10
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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.
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We are a common law nation, and this has a lot to do with why we collectively look to the distant past so much for insight. Much of Europe, Germany included, implements a civil law system that is, for lack of better words, far more rigid and oftentimes "easier" to administrate on a day to day basis; this is due in large part to its almost singular reliance on codified statutes as the basis for rule-making. Judges have far less discretion, save for sentencing in some nations, in a civil law system, and the application of rules is a relatively clear cut process.
Common law systems, on the other hand, rely on judge-made law in order to illustrate and apply rules, at least in part. Here in the US, we use a hybrid intermingling of statutes, administrative regulations, and judge-made common law in order to substantiate the application of the law. This is why we love to refer to specific court cases when discussing a particular issue; Brown v. Board of Education is literally the law on how it is unconstitutional for public schools to be segregated by race, Miranda v. Arizona is literally the law on how it is unconstitutional for a defendant to be questioned prior to receiving information as to their Due Process rights, and the list goes on.
Naturally, each system has its positives and negatives, and to get into those would require a lot of legwork lol. In any case, you can begin to see why these debates over what a bunch of dead old white men thought have some tooth to them in the US political and legal arenas, as our laws are built on top of those thoughts and their interpretations.
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I really have trouble finding one great point about it that would justify all the negative sides. It's archaic by design because it keeps draconian punishments of earlier times alive that nobody can honestly think are justified today, and the reliance on earlier decisions seems in the best case completely arbitrary and in the worst case intentionally abusive, especially for minorities.
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Well, you are right to point out that the common law can be slow to react and can be co-opted by those with insincere intentions, but I think a qualitative comparison in this case is too difficult to perform correctly, and should therefore be ignored in favor of improving upon what already exists.
One can look at the United States as a whole and identify a number of problems relative to our system of government. But, if one starts to "proportionalize" their look relative to the size of nations with better outcomes, it becomes harder to indict the US as a whole. There are literally dozens of states that, when compared individually, fare quite well against many European nations, and this doesn't even have to take into account the inherent problems associated with our uniquely diverse rural/urban/geographic divides. For a quick and admittedly narrow example, the state of Michigan got rid of the death penalty before practically anyone in Europe did. One can point to the sheer variety of concerns that face a country like the US as reason enough to support a system of law that necessarily shifts relative to the locale or subject matter at hand.
The point here is that these comparisons are hopelessly bogged down in variables that are simply impossible to take into account with enough accuracy to justify any accompanying conclusion. We're more or less stuck with the common law, and I'd rather do my part in making it work rather than kicking sand at foundations that won't shake from external forces.
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What's being quoted from Holmes is more of a metaphysical discussion of what "the law" is as opposed to a proposal for a judicial method. We might as well be talking about the nuances of social contract theory.This becomes very clear when you start looking at Holmes's judicial opinions, and in particular, his views on substantive due process. He adheres very closely to the text of the Constitution, providing broad discretion to legislators to enact laws, even if the object was undesirable (in his view). So Holmes's answer to the question of "how ought courts decide cases of a given kind?" is very clearly "with restraint" and in accordance with the forms. In other words, the text of the Constitution is of paramount importance when it comes to the judicial method.
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On February 12 2015 09:04 Nyxisto wrote:
I really have trouble finding one great point about it that would justify all the negative sides. It's archaic by design because it keeps draconian punishments of earlier times alive that nobody can honestly think are justified today, and the reliance on earlier decisions seems in the best case completely arbitrary and in the worst case intentionally abusive, especially for minorities.
The Constitution says practically nothing about what kinds of punishments be instituted. Only that they may only be instituted through due process of law. I think we can all agree that's a good sentiment.
You have to consider earlier decisions because if you don't you no longer have rule of law. You essentially have a despotism run by judges if you don't consider earlier decisions. Laws must be applied similarly between both temporal and physical locations. If someone breaks law A in one town, and somebody else breaks law A in another town, they should face similar consequences as someone who broke law A 10 years ago.
Essentially, if judges don't at least consider previous decisions when making current ones, they're practically just making shit up.
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EPT
