Trumpling the Truth

[nafod]

The Constitution builds an inconsistent logical system, where you can create different threads of argument that eventually conflict with each other. Doesn't mean you are at total liberty to go willy-nilly in whatever direction you want, but definitely at some point values have to play their role.

Yes of course. But so-called "Originalists" lie about it.

I'm with you, bro

[bennyonesix]

The Constitution builds an inconsistent logical system, where you can create different threads of argument that eventually conflict with each other. Doesn't mean you are at total liberty to go willy-nilly in whatever direction you want, but definitely at some point values have to play their role.

Yes of course. But so-called "Originalists" lie about it.

I'm with you, bro

Don't pretend what we have had is a sequence of hard cases where these poor judges can't help but decide as best they can. We've had an ideologically aggressive faction of justices who wanted to take power from the other branches and did so.

Now, you can agree with that. But you can't say there isn't any alternative because hard cases lawgic trap.

[JimZipCode]

Wow Benny, this is kind of fun.

I'm an Alito fan. Scalia was a good justice though. He was consistent, thoughtful and made his reasoning clear.

I grudgingly like Alito a bit more than Scalia. He's careful.

Scalia seems likely to go down as a great justice. Certainly an influential one. He was not legally consistent, but he sure as shit made his reasoning clear.

the model for judging should be Justice Holmes

I admire Holmes. It's crazy that he served in the Civil War. Wounded at Antietam and elsewhere. But its worth noting that his opposition to so-called "natural law" would put him at odds with most of the Framers.

It's hard not to be impressed with Brandeis, at least for his foresight. He might be more relevant now than he seemed a hundred years ago.

Judge Posner, another great admirer of Holmes, would likely say that the model for judging should be Learned Hand. I don't know much about Hand.

I can't think of one social issue that rbg, kagan, sotomayor would allow the country to move rightward on. Can you?

Define "social issue" and "rightward/leftward". You seem to use "leftward" as a synonym for "away from what the Framers intended", and "rightward" as "closer toward the Framers' intentions". I don't think that's right. For one example, our current liberal/conservative political environment would place a concern for the rights of the accused toward the "liberal" end of the spectrum. RBG and Sotomayor have expressed strong concern for the rights of the accused. I think that puts them pretty squarely on the side of the Framers. Is that leftward?

I think you also need to admit the left justices are the least intelligent and talented crew in a hundred years. They are intellectual non entities.

I'll give you the men. I assume you are lumping Kennedy in with the left. That would be technically wrong (the swing justice by definition is not part of the left; certainly not reliably), but very justifiable given Obergefell. The men I'll concede.

I'll argue the women. RBG is sharp as fuck. Kagan, I haven't read her opinions, but going off her resume she's likely pretty damn smart. On Sotomayor, the jury is still out (ha!). Roberts seems not to trust her, judging by his assignment of opinions. I don't know if that's intellect or ideology. It MAY be ideology. Her dissent in Utah v. Strieff showed some chops. But ultimately I think we haven't seen enough of her to draw firm conclusions.

And I disagree all judges try to use neutral rules. Many judges, maybe most now especially with all the women (jfc) try and do justice.

Well. Obviously it's over-confident of me to say "all" about anything. But certainly the ethos of the judging profession is to apply outcome-neutral rules. I think the vast majority of judges at least pay lip-service to this ideal.

I would also say that all judges take at least a peek at the outcome, before applying any rule. That's just human nature. Judges like to do justice too, where possible. If one outcome-neutral rule leads to injustice, a judge is likely to reach for a different outcome-neutral rule; and then claim that THIS rule is the one that clearly applies.

do "hard cases" require taking on the regulation of the police via procedural due process/ 4th, 5th and 6th Amendment? Does it require them to regulate immigration as in the 9th's TRO? Did hard cases require Brennan to install his utter failure of a 1st Amendment Doctrine? Did they require Douglas to create a right to privacy out of thin air? Or desegregate the schools?

Don't pretend what we have had is a sequence of hard cases where these poor judges can't help but decide as best they can. We've had an ideologically aggressive faction of justices who wanted to take power from the other branches and did so.

Oh, bullshit.

Taking selections from your list above:

Brown v Board of Ed was not "ideologically aggressive". It was a return to legal sanity after ~90 years of ideologically aggressive jurisprudence that was aimed at judicially legislating the 14th Amendment out of the Constitution. Brown v Board *LOOKS* aggressive because we're comparing it to the Court's "King Log" approach to Jim Crow. Yeah, it's a splash of cold water in the face. But if the Court had been doing its job when they ruled on Cruikshank, and Plessy v Ferguson, and similar cases, then Brown v Board wouldn't have been necessary.

Your "out of thin air" characterization of Griswold v. Connecticut is vapid. Douglas was obviously correct: of course there's a right to privacy. If the Ninth Amendment means anything at all, then privacy is the single most obvious unenumerated right. Douglas is right when he sees it in the "penumbras and emanations" of the Fifth and First Amendments; I would say also the Fourth. The opposite position is impossible to maintain. If there's no right to privacy, then what could the phrase "unreasonable searches" in the Fourth Amendment possibly refer to? Any search would be "reasonable", if there is no right to privacy.

Conservatives would squawk as loud as anyone if the govt violated their privacy. The only reason any "conservative" ever objects to the idea of a right to privacy, is because it's the hook that abortion was hung on. A hook too slender for the weight that's put on it, I think. I don't think privacy is sufficient to confer a right to abortions. Abortion is protected elsewhere in the Constitution, not by privacy.

I tend to agree with Brennan on a broad free speech. I would think most everyone on this board does too. So I don't know what you're talking about with your "utter failure of a 1st Amendment Doctrine" nonsense. Do you mean his mistake in using the phrase "actual malice", and subsequent efforts to articulate some other standard?

The Ninth Circuit is not "regulating immigration" with its TRO on Trump's poorly-written and rather stupid exec order. Due Process is a real thing. Trump's administration can still pursue its case. And when that case is ultimately decided, the decision can be reviewed.

What did I leave out? Miranda et al? Wow. How far back do you want to roll back the clock? When was the last time the legal system was in correct balance, 1928? Do we really believe that the police don't need any regulation? The Framers thought the accused had rights; I don't see why any reasonable person would disagree.

By the way, civil forfeiture is complete bullshit too.

I don't think I did update? If I did I apologize.

Don't. I edited the hell out of my long post above. Ton of typo's.
Maybe I just missed that closing paragraph, my first time thru your post.

But what about the 10th?

Doesn't come up very much. Madison said that it was superfluous, and I try not to argue with Madison.

Honestly, I don't have a grasp on the 10th. I think there's a body of law around the 10th and around the Commerce Clause, and I don't understand any of it or how it interacts. Sometimes the SC nixes a law, because the Fed can't require states to enforce federal law. The Fed can incentivize, via eg the power of the purse, but it can't require it. That part I get. But how the rest of it works together, I don't have a clear understanding of it.

How does Obergefell square with the constitution?

Ha. The reasoning in Obergefell ranges from ridiculous to non-existent. Scalia's dissent is delightful. Some highlights:

• an opinion lacking even a thin veneer of law
• a style that is as pretentious as its content is egotistic
• [if] I ever joined [such] an opinion for the Court ... I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia's comments about the legal reasoning are pretty much on target. I'm skeptical of Kennedy's constitutional right to dignity. It is, to be kind, a vague idea with wide potential for unintended ramifications. That said, I don't sign on to Scalia's hypocrisy either. His arguments against Obergefell apply equally to Loving v Virginia, a decision he agrees with. Here as elsewhere, Scalia's legal findings are entirely driven by his religious beliefs.

Obergefell is an instance of the correct decision rationalized with the wrong reasons. If I had been writing the opinion in Obergefell, it would have been short and sweet. I would have opened Pandora's box:

The right of one unmarried consenting adult citizen, to marry one other unmarried consenting adult citizen, is one of the unenumerated rights referred to in the Ninth Amendment. It is not to be denied or disparaged.

Then Scalia's and Thomas's heads would have exploded.

[bennyonesix]

Roberts has the most intellectual horsepower running away. And he knows it, and that's why he got himself into a ton of trouble with the ACA decisions. It likely ended his chance at a historic judgeship. But there is always the chance he was simply blackmailed. Or that he genuinely believes in an extremely deferential Court. The latter possibilty is why this 9th Circuit absurdity could be interesting. Any opinion by him other than deference to the Executive power would be a refutation of those earlier decisions.

Scalia is not going to leave much of a legacy because he was so combative. He couldn't forge alliances like Douglas and then Brennan and how Roberts had the potential for and which he likely squandered on the ACA. His brilliant 4th and 5th jurisprudence didn't go anywhere for that reason.

Holmes kept his bullet hole filled uniform in his office closet. His early intellect was terrifying. And the really incredible thing is that the law came easy for him. But he had some good genes. I'm not an Originalist. I'm not even someone who thinks the Balance of Powers is the best form of gov. But there is little question that his view of the roles and boundaries of the three branches is historically correct. And I think the best. The Court is not a House of Lords or Rabbinic Counsel or Gerousia. It should ignore outcomes.

And Posner is a libertarian which is an insurmountable character flaw.

And Learned Hand is practically Holmes compared to you and the women of SCOTUS. His best quote: as a litigant I should dread a lawsuit beyond anything short of sickness and death.

Kennedy has been moving left his entire career. He wants to keep those homemade Ginsburg cookies coming and lives for the headpats.

We'll have to disagree on RBG. I've not read all her cases, but even as a younger woman her decisions were unimpressive. Right now, at her current level of decay she is worse than useless intellectually.

You are talking ahistorical nonsense on Brown. Integration was an ideological policy preference by a vanishingly small minority: Elite Eastern Seaboard WASPs and Jews. Both groups used the Courts to impose it on the nation. It had nothing to do with the purpose of the 14th. Blacks didn't want it and whites didn't want it. But you know that the 14th became a pretext for the imposition of every elite liberal desire.

Well you are correct the Right to Privacy underlies most all the culturally Left decisions made by the court. And that it is an absolute logical necessity for the current legal regime. But don't mistake that for it existing prior to Griswold. It is nowhere before that. Never discussed and never ruled on. It is a legal fiction. A brilliant rhetorical device. But completely unconstitutional.

The Ninth's orig intention was reversed by the novel interpretation of the 14th. The entire point was to limit Fed power. The application of the 14th to the States inverted that intention.

And as to the 4th etc... well that was Scalia's entire jurisprudence. It is based on limited geographic immunity from Royal power: the house etc. It historically had nothing to do with protecting behavior the majority deemed perverse or immoral. Which is what the Privacy Right is about: protecting immoral behavior.

Brennan failed to articulate any coherent theory as to pornography and libel/slander. He admitted it later in life. But he did give us anchor babies out of his imagination!

The 9th's decision on the TRO was a disaster on every level both prudential and legal. There is no basis in law for it. And it very much does place the judiciary in charge of immigration just as they are now in charge of policing. The Court decided that because of racism, the localities could not be trusted to run LE so they instituted a regime of allowing guilty people to go free unless the police complied with the courts policy preferences as to policing. They advocate the same here. The court will create in their minds a fair system and punish the Executive for not complying.

We should go back to before the Warren Court. Absolutely.

[JimZipCode]

We should go back to before the Warren Court. Absolutely.

Ha. Thought so!

Benny, you are a complete whackjob.
This has been totally fun, though. Thanks for the discussion.

Posner edited a compilation of Holmes' writings: opinions, letters, speeches. I've had it in the back of my mind as something I'd like to get, eventually. After this discussion, I'll move it to the top of my Amazon cart. Whatever his character flaws, Posner is very smart and absurdly well read. Quite the polymath. He reveres Holmes. Should be good.

[bennyonesix]

Just read The Common Law and this:

http://www.hup.harvard.edu/catalog.php? ... 0674337312

His correspondence with Laski was an epochal moment in American History: for good or bad depending on politics.

Link to pdf format etc

https://archive.org/details/holmeslaskilette017767mbp

[johno]

Gorsuch is an originalist. As such, he is less likely to legislate from the bench.

Bullshit. So-called "originalism" (Richard Posner prefers the term "legalism") is just as much a vehicle for the judge's personal prejudices as any other legal theory.

Maybe you can point me to an originalist's opinion that is as unhinged as Obergefell or as corrupt & intrusive as Wickard v. Filburn.

[Herv100]

Jimtard, just say you're a gungrabber. Save yourself all the typing

[JimZipCode]

Maybe you can point me to an originalist's opinion that is as unhinged as Obergefell

Not likely. I may not be able to find one on the books. Obergefell is a high bar.
It was, as I said above, the right decision rationalized with the wrong (or non-existent) argument.

...or as corrupt & intrusive as Wickard v. Filburn.

You're beyond me here. I haven't studied Wickard, though I'm pretty sure it wasn't "corrupt". You'll have to provide a convincing argument that a so-called "originalist" couldn't have written Wickard: I don't see one. Robert Jackson wasn't a clown.

Heller was pretty damn intrusive.

[JimZipCode]

Jimtard, just say you're a gungrabber. Save yourself all the typing

You can have my keyboard when you pry it from my cold, dead hands.

[bennyonesix]

Maybe you can point me to an originalist's opinion that is as unhinged as Obergefell

Not likely. I may not be able to find one on the books. Obergefell is a high bar. :happiness:
It was, as I said above, the right decision rationalized with the wrong (or non-existent) argument.

...or as corrupt & intrusive as Wickard v. Filburn.

You're beyond me here. I haven't studied Wickard, though I'm pretty sure it wasn't "corrupt". You'll have to provide a convincing argument that a so-called "originalist" couldn't have written Wickard: I don't see one. Robert Jackson wasn't a clown.

Heller was pretty damn intrusive.

I could have my white ethnostate in 3yrs if the second was deemed a state decision.

[Turdacious]

I could have my white ethnostate in 3yrs if the second was deemed a state decision.

Where? At Westboro Baptist?

[bennyonesix]

They were a gov operation. He was a democrat and buds with Bill.

No. If SCOTUS gave individual states the right to make their own gun laws, the movement of whites to pro gun states would be like nothing we have ever seen. The demographics there would reverse and return to pre 1965 sane levels.

[JimZipCode]

If SCOTUS gave individual states the right to make their own gun law...

What do you mean, "gave"? The states did exactly that for 220 years, until Scalia took that right away from them in Heller.

The demographics there would reverse and return to pre 1965 sane levels.

I think you mean 1964. That's the year of the Civil Rights Act.

[bennyonesix]

1965 was the Imm Act which we were assured would not change the demographics of the country.

Either way, they don't have it now. And if SCOTUS were to rule explicitly that States can restrict firearm ownership as they wish, you would see massive population shift of whites to gun friendly states.

And I am not a 2nd Amend guy. I think it has to do with States being allowed to maintain militias for the defense of the residents against invasion (and that includes illegal aliens) and the Fed Gov. I think the States have leeway with respect to individuals to the extent they aren't involved in a militia.

Same as with Roe. The right is illusory and the states should decide.

That being said, I am a huge believer in firearm possession by citizens and would move to the most gun friendly jurisdiction I could afford. And would vote for politicians who feel the same way.

And of course, a federal gun ban would be unconstitutional and an imposition would be grounds for rebellion.

[JimZipCode]

I am a huge believer in firearm possession by citizens and would move to the most gun friendly jurisdiction I could afford.

In the 90s I worked for a while in Denver. Grew up and still live in the Balto-Washington corridor. In one city you might see rifles in gun racks in the back of a pickup truck. Definitely not in the other. There has always been wide variation in gun-friendliness, in different parts of the country.

Same as with Roe. The right is illusory and the states should decide.

The right is absolutely not illusory, but it sure as shit can't be based on privacy. That's another right decision appended to the wrong rationalization.

[dead man walking]

back to trumpling truth. exhibit:

Washington (CNN)The FBI rejected a recent White House request to publicly knock down media reports about communications between Donald Trump's associates and Russians known to US intelligence during the 2016 presidential campaign, multiple US officials briefed on the matter tell CNN.

White House officials had sought the help of the bureau and other agencies investigating the Russia matter to say that the reports were wrong and that there had been no contacts, the officials said. . . .

The direct communications between the White House and the FBI were unusual because of decade-old restrictions on such contacts. Such a request from the White House is a violation of procedures that limit communications with the FBI on pending investigations.

[dead man walking]

and this, kinda like weapons of mass delusion revisited (albeit on a smaller scale), but cooking the intelligence in any case:

Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence -- the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.

[bennyonesix]

I am a huge believer in firearm possession by citizens and would move to the most gun friendly jurisdiction I could afford.

In the 90s I worked for a while in Denver. Grew up and still live in the Balto-Washington corridor. In one city you might see rifles in gun racks in the back of a pickup truck. Definitely not in the other. There has always been wide variation in gun-friendliness, in different parts of the country.

Same as with Roe. The right is illusory and the states should decide.

The right is absolutely not illusory, but it sure as shit can't be based on privacy. That's another right decision appended to the wrong rationalization.

That's liberalism.

[TerryB]

good discussion

[JimZipCode]

That's liberalism.

What is?

[bennyonesix]

"Right decisions appended to wrong rationalizations"

[JimZipCode]

Nice.

[dead man walking]

with the conclusion of jim and benny's judicial-erotic posting frenzy, we can return the the point of this thread:

100 lies from don-occhio

http://www.huffingtonpost.com/entry/don ... 1e7dac3ca6

[Turdacious]

President Donald Trump is asking Congress to look into whether the Obama administration abused its investigative powers during the 2016 election, White House press secretary Sean Spicer said in a statement Sunday.
The request came a day after Trump took to Twitter to accuse former President Barack Obama, without providing any evidence, of wiretapping his phones in Trump Tower in the weeks before the November election.
"Reports concerning potentially politically motivated investigations immediately ahead of the 2016 election are very troubling," Spicer said in the statement, which he also posted on Twitter. "President Donald J. Trump is requesting that as part of their investigation into Russian activity, the congressional intelligence committees exercise their oversight authority to determine whether executive branch investigative powers were abused in 2016."

"Neither the White House nor the President will comment further until such oversight is conducted," Spicer added. He did not provide any further details on the President's request to Congress.

http://www.cnn.com/2017/03/05/politics/ ... d=35135067
Curiouser and curiouser