Now serving #3... Samuel Alito [Archive] - Straight Dope Message Board

Evil Captor

10-31-2005, 07:29 AM

They nicknamed him "Scalito" and for good reason. The Dems so far have been "keeping their powder dry" but by all accounts, this is one guy we need to use whatever powder we have. This will be an interesting test of the Dem Congressional leadership .. do they have any powder to use and are they willing to use it?

Oh, yeah, and nominating a hard-core conservative at this point in time is an obvious attempt at wagging the dog by the White House. Gotta stay focused on Plamegate and all the other shit the White House has been up to.

Evil Captor

10-31-2005, 07:32 AM

Scalia-lite? Interesting...

Is he really that conservative, or does he just look ultra conservative compared to the rest of the 3rd U.S. Circuit Court of Appeals?

He's not Scalia-lite, he is the same or as bad as Scalia. Frex, he was the lone dissenter on an abortion-related decision because he felt that a provision that mandated spousal notification should be included when the rest of the Court of Appeals wanted it thrown out. They were concerned that battered women who were required to notify spouses of an abortion wouldn't do it, due to a well-founded far that they'd get the shit beaten out of them. Alito didn't care. He's scum.

BobLibDem

10-31-2005, 07:40 AM

Gentlemen, start your filibusters. Think Progress, (http://thinkprogress.org/2005/10/31/samuel-alitos-america) , while not the most unbiased source in the world, gives us some insight into Alito's mindset.

ShibbOleth

10-31-2005, 07:52 AM

He's been described, on NPR, by colleagues as being driven by points of law and not ideology. This includes people who would not always agree with his POV. They say he's experienced, careful, yadda yadda. Like Roberts but with more of a record to look at.

Mr. Moto

10-31-2005, 08:00 AM

What would be the justification for filibustering Alito?

What the .... ?!?!

10-31-2005, 08:06 AM

What would be the justification for filibustering Alito?

Uh ..... because he won't let the libs legislate from the bench?

They won't fillibuster because they need to save it for when they really need it ........ when Ginsburg and Stevens leave.

Evil Captor

10-31-2005, 08:08 AM

What would be the justification for filibustering Alito?

Whyncha go to the Think Progress link BobLibDem provided and read the headers and come back with some reason he SHOULDN'T be filibustered?

ShibbOleth

10-31-2005, 08:16 AM

Whyncha go to the Think Progress link BobLibDem provided and read the headers and come back with some reason he SHOULDN'T be filibustered?

I'm on your side of the fence, generally, but that site seems somewhat slanted.

Fear Itself

10-31-2005, 08:19 AM

What would be the justification for filibustering Alito?Because he is too conservative. Hey, you guys opened that door by shooting down Miers for being to liberal.

elucidator

10-31-2005, 08:20 AM

One can have little doubt that the President nominated a person who, in his opinion, is the most qualified. Next to Harriet Meiers, of course.

Debaser

10-31-2005, 08:22 AM

Because he is too conservative. Hey, you guys opened that door by shooting down Miers for being to liberal.

What?

1. Conservatives didn't filibuster her.
2. Conservative objections to her weren't ideology driven. She wasn't qualified.

samclem

10-31-2005, 08:25 AM

Whyncha go to the Think Progress link BobLibDem provided and read the headers and come back with some reason he SHOULDN'T be filibustered?

Or, you could actually read the cases rather than the headers and make up your own mind. I'm in the middle of doing this, and haven't formed an opinion yet.

BobLibDem

10-31-2005, 08:26 AM

I'm on your side of the fence, generally, but that site seems somewhat slanted.

Admittedly so. But in any event, the cases cited therein can be referenced in more impartial cites.

Why filibuster? Because his philosophy is far outside the acceptable mainstream of modern political thought.

samclem

10-31-2005, 08:26 AM

One can have little doubt that the President nominated a person who, in his opinion, is the most qualified. Next to Harriet Meiers, of course. Blind squirrel, etc. etc.

Fear Itself

10-31-2005, 08:31 AM

What?

1. Conservatives didn't filibuster her.They didn't have to, Bush folded like a cheap lawn chair.2. Conservative objections to her weren't ideology driven. She wasn't qualified.Haw haw haw, just keep repeating that over and over, and maybe someday it will be true!

Patty O'Furniture

10-31-2005, 08:31 AM

(Reflexively reaches to protect nuts)

Cliffy

10-31-2005, 08:36 AM

We've got a case before him right now. So if he rules for our client, he's obviously a model of restraint and a sober jurist with a deep and abiding respect for the law and the traditional of American society. If he rules against us, though, well, it goes without saying that he's a unshackled movement conservative that has no business on the bench.

Just kidding! I don't know too much about him because others on the team are on that side of it, but I've been told that they were impressed by how tough he was on both sides during oral argument.

--Cliffy

Cliffy

10-31-2005, 08:40 AM

2. Conservative objections to her weren't ideology driven. She wasn't qualified.

Tain't so, McGee. Yes, she was unqualified, which is why the moderates on the judiciary committee came around to the view that she shouldn't be confirmed, but from day one (OK, maybe day two), the right-wing of the GOP decried her nomination on idealogical grounds, and then was happy that she truly didn't have the chops.

--Cliffy

Mr. Moto

10-31-2005, 08:44 AM

Admittedly so. But in any event, the cases cited therein can be referenced in more impartial cites.

Why filibuster? Because his philosophy is far outside the acceptable mainstream of modern political thought.

According to a man who put Lib Dem into his user name. ;)

beagledave

10-31-2005, 08:45 AM

Gentlemen, start your filibusters. ..

Just an observation. It's a wee bit difficult to take your observations seriously when it comes to these instant fillibuster (http://boards.straightdope.com/sdmb/showpost.php?p=6384141&postcount=133) requests.

Let the filibuster begin! Roberts will not fly and will not be confirmed.

cmkeller

10-31-2005, 08:51 AM

Evil Captor

10-31-2005, 08:55 AM

Or, you could actually read the cases rather than the headers and make up your own mind. I'm in the middle of doing this, and haven't formed an opinion yet.

Good point.

Digital Stimulus

10-31-2005, 08:59 AM

I was skeptical at first, but I'm beginning to think Harriet Meirs was a feint strategy all along.
This doesn't make sense to me. What would have been the point?

treis

10-31-2005, 09:05 AM

Or, you could actually read the cases rather than the headers and make up your own mind. I'm in the middle of doing this, and haven't formed an opinion yet.

Do you have a link to his dissent in Casey?

John F

10-31-2005, 09:06 AM

Gentlemen, start your filibusters.

I might be misunderstanding the strategies in play.

Won't a filibuster trigger the nuclear option and allow the right to more or less slam dunk someone in place?

ShibbOleth

10-31-2005, 09:06 AM

This doesn't make sense to me. What would have been the point?

I don't think it was a feint, either, but if it was then the best explanation would be to give the Republicans a chance to show that they could be tough on their own, or the Democrats a chance to exhaust their ammo going after her.

Problem is that the first makes the President look bad, in the sense that he's losing control. And the second didn't happen. So if it was a feint, it was a poor one.

Menocchio

10-31-2005, 09:06 AM

I was skeptical at first, but I'm beginning to think Harriet Meirs was a feint strategy all along. Aleto is clearly a judicial choice of the type who'd be expected, and Roberts was also solid. The notion that an unusual candidate like Meirs is the result of pure cluelessness or cronyism doesn't seem to me to mesh with the evidence that he's so on the ball with the others.

Perhaps so, but then what was the point with Meirs?

Bush exposed the weaknesses in his own base, and made himself less popular all-around.

He did not force the Democrats to waste any "ammunition", so to speak.

He also proved himself capable of making a bad choice in regards to judicial nominations. Which makes it easier to suggest that he did so twice.

On first blush, I don't see any real weaknesses on this guy. He seems more experienced than even Miers, and while he's undeniably conservative, he seems well within "sane" levels. Unless there's some skeletons in his closet or some bit of real ideological craziness is revealed later, he'll be confirmed. I doubt the Dems will try to fillibuster after it becomes clear that they won't get help from the moderate Republicans. Look for an exact repeat of the Roberts vote.

But that's just first impressions. Maybe more scrutiny will reveal something that makes him harder to stomach for moderates, and the Democrats and certain moderate Republicans will capitalize on Bush's recent political weakness.

Menocchio

10-31-2005, 09:08 AM

He seems more experienced than even Miers,

I meant to say Roberts here. Sorry.

Debaser

10-31-2005, 09:08 AM

This doesn't make sense to me. What would have been the point?

The Bush administration angered it's base, spun their wheels for weeks wasting political capital all the way, and just generally looked like a bunch of incompetant schmucks. Clearly this was all a deliberate and ingenious political move. :rolleyes:

Fear Itself

10-31-2005, 09:12 AM

I might be misunderstanding the strategies in play.

Won't a filibuster trigger the nuclear option and allow the right to more or less slam dunk someone in place?Unless some moderate Republicans vote against the president's nominee, they have the power to slam dunk anyone they want, filibuster or not.

Debaser

10-31-2005, 09:15 AM

But that's just first impressions. Maybe more scrutiny will reveal something that makes him harder to stomach for moderates, and the Democrats and certain moderate Republicans will capitalize on Bush's recent political weakness.

This is what I'm concerned about. Unlike both Roberts and Meirs, this guy actually has a record. He's been a judge and has made decisions. This should be a good thing, but unfortunately in our partisan political climate it is not. It's a weakness.

People are going to go through every decision he's ever made and look for mistakes or decisions that are outside the "mainstream", however you want to try and define that.

John Mace

10-31-2005, 09:17 AM

Because his philosophy is far outside the acceptable mainstream of modern political thought.
Whatis the difference between the "acceptable mainstream" and the "mainstream"?

Is Scalia outside either of those? If so, why?

Is it "political thought" that we need to look at or "judicial philosophy"?

Frank

10-31-2005, 09:19 AM

Unless some moderate Republicans vote against the president's nominee, they have the power to slam dunk anyone they want, filibuster or not.
Except that it would take some Democrats to break the filibuster.

I think the chances of the "nuclear option" have decreased remarkably in the past few months. Senate Republicans have to be wondering about the mid-terms next year.

On point: I have no opinion about Alito yet, except the obvious "He's too conservative for my tastes." If he turns out to be another Roberts, I suppose I'll have no choice but to grudgingly accept him. We'll see.

treis

10-31-2005, 09:22 AM

On first blush, I don't see any real weaknesses on this guy. He seems more experienced than even Miers, and while he's undeniably conservative, he seems well within "sane" levels. Unless there's some skeletons in his closet or some bit of real ideological craziness is revealed later, he'll be confirmed. I doubt the Dems will try to fillibuster after it becomes clear that they won't get help from the moderate Republicans. Look for an exact repeat of the Roberts vote.

But that's just first impressions. Maybe more scrutiny will reveal something that makes him harder to stomach for moderates, and the Democrats and certain moderate Republicans will capitalize on Bush's recent political weakness.

His dissent in Casey (I haven't been able to read it yet) seems to show that he is staunchly against the right to privacy and would overturn Roe. If Roberts sided against Roe Alito would tip the balance towards overturning it. That is simply an unaccecptable outcome to the Democrats and they will fight it for all they are worth. Choosing someone with such a clear anti-Roe (again, the papers make it out I haven't been able to read his opinion) standing was a mistake by Bush and it will lead to an ugly confirmation battle. Losing another nominee would be a devestating blow to Bush and losing Roe would be devestating to the Democrats (until the next election rolled around). Both sides seem to be in a situation that they can not back down from.

Evil Captor

10-31-2005, 09:25 AM

His dissent in Casey (I haven't been able to read it yet) seems to show that he is staunchly against the right to privacy and would overturn Roe. If Roberts sided against Roe Alito would tip the balance towards overturning it. That is simply an unaccecptable outcome to the Democrats and they will fight it for all they are worth. Choosing someone with such a clear anti-Roe (again, the papers make it out I haven't been able to read his opinion) standing was a mistake by Bush and it will lead to an ugly confirmation battle. Losing another nominee would be a devestating blow to Bush and losing Roe would be devestating to the Democrats (until the next election rolled around). Both sides seem to be in a situation that they can not back down from.

I don't think the Dems will catch hell from the mainstream for opposing Scalito. They can say, "We did not oppose Roberts. We did not oppose Mier. We are not obstructionists, but we will not be steamrollered by a right-wing whack job like Alito." I suspect a fight will do their image good.

Debaser

10-31-2005, 09:27 AM

losing Roe would be devestating to the Democrats (until the next election rolled around).

How would it be devestating to the dems? Roe being overturned would be the best thing that ever happened to the Democratic party. Conservatives would be running for the hills. We'd see Democrats come to control the white house and both houses of congress if this were to happen, IMO. This could happen even if the Dems continue to have the problems they fact with finding a message and a vision for the country's future.

treis

10-31-2005, 09:35 AM

How would it be devestating to the dems? Roe being overturned would be the best thing that ever happened to the Democratic party. Conservatives would be running for the hills. We'd see Democrats come to control the white house and both houses of congress if this were to happen, IMO. This could happen even if the Dems continue to have the problems they fact with finding a message and a vision for the country's future.

Hence my "until the next election"

Cliffy

10-31-2005, 09:47 AM

Won't a filibuster trigger the nuclear option and allow the right to more or less slam dunk someone in place?
Like This Year's, I don' t think they've got the juice anymore. The nuclear option was a legit threat months ago when the GOP was united, but Bush has lost so much political support now, it's a much higher hill to climb to get over the political cost, which was always going to be significant. Plus, Frist is on the defensive now because of his stock dealings, so he's not in a position to push it. And because of Miers, the lack of filibuster is legitimately scary now to people who didn't care before -- if the nuclear option were tried, Democrats would say that if it weren't for the threat of filibuster, Miers would have gotten confirmed and we'd have someone woefully unqualified on the Court. That's perhaps an exaggeration of the truth, but not much of one, I don't think.

--Cliffy

scule

10-31-2005, 09:55 AM

Bricker

10-31-2005, 09:59 AM

He's not Scalia-lite, he is the same or as bad as Scalia. Frex, he was the lone dissenter on an abortion-related decision because he felt that a provision that mandated spousal notification should be included when the rest of the Court of Appeals wanted it thrown out. They were concerned that battered women who were required to notify spouses of an abortion wouldn't do it, due to a well-founded far that they'd get the shit beaten out of them. Alito didn't care. He's scum.

Perhaps Alito was searching for the portion of the federal constitution that mandated such a provision, and couldn't find it.

Your criticism would be spot-on if we were discussing a legislator, someone who was crafting the law in question. But we're discussing a judge: the law was already written; it was his job to determine if it violated the federal constitution.

The constitution does not mandate that a law be wise, or caring, or concerned with battered women getting the shit beat out of them.

Left Hand of Dorkness

10-31-2005, 10:04 AM

Perhaps Alito was searching for the portion of the federal constitution that mandated such a provision, and couldn't find it.
Requiring someone to have a conversation they don't want to have before receiving a medical treatment, when that conversation is not germane to the medical treatment, seems to me to skirt dangerously close to a violation of the first amendment. I could similarly see a violation of the fourteenth amendment: are men ever required to consult with their wives before receiving a medical treatment?

If someone could link to the SC opinion in that case, I'd appreciate it; my google-fu when it comes to such cases is weak.

Daniel

treis

10-31-2005, 10:06 AM

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833

Evil Captor

10-31-2005, 10:07 AM

Perhaps Alito was searching for the portion of the federal constitution that mandated such a provision, and couldn't find it.

Your criticism would be spot-on if we were discussing a legislator, someone who was crafting the law in question. But we're discussing a judge: the law was already written; it was his job to determine if it violated the federal constitution.

So the other judges on the appeals court got it wrong, eh? Sorry, color me "unconvinced."

The constitution does not mandate that a law be wise, or caring, or concerned with battered women getting the shit beat out of them.

One would hope our judges would be all those things, and care about that.

Diogenes the Cynic

10-31-2005, 10:11 AM

It's called "right to privacy," Bricker. There's also a little thing called "Doctor-Patient Confidentiality." Those are the starting points. A given legislature has to show a reason why those rights should be rescinded for one particular medical procedure. Spousal notification is an attempt to take away a Constitutional right without a compelling cause to do so. Quit being obtuse.

As to this Alito guy, anyone who thinks that a woman has no right of privacy against an abusive spouse is too ideologically extreme and ethically suspect to serve on the Supreme Court. I think he needs to be filibustered.

jsgoddess

10-31-2005, 10:12 AM

How would it be devestating to the dems? Roe being overturned would be the best thing that ever happened to the Democratic party.

Maybe. But personally I care about having the right to an abortion. I don't care about the Democratic party.

I think overturning Roe would be devastating for the Republican party. I'm not so sure it would benefit the Democrat party. It might hurt both. Both would lose a federal wedge issue.

Mr. Moto

10-31-2005, 10:14 AM

One would hope our judges would be all those things, and care about that.

Well, I think they should care about those things. But they certainly shouldn't care about them blind to other considerations, like the rights of the legislative branch and the several states to pass laws and the limits placed on all branches, at all times, by the Constitution.

Diogenes the Cynic

10-31-2005, 10:17 AM

State legislatures do not have the authority to abridge federal civil rights. Alito has shown a willingness to overlook that fact in order to support a personal ideology (and a rather repugnant one at that). He is a conservative activist judge. He should not be allowed to pollute the nations' highest court.

Captain Amazing

10-31-2005, 10:19 AM

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833
That's the Supreme Court decision. This looks like Alito's third circuit dissent:

http://www.confirmthem.com/?p=1764#comment-62642

Bricker

10-31-2005, 10:21 AM

Requiring someone to have a conversation they don't want to have before receiving a medical treatment, when that conversation is not germane to the medical treatment, seems to me to skirt dangerously close to a violation of the first amendment. I could similarly see a violation of the fourteenth amendment: are men ever required to consult with their wives before receiving a medical treatment?

Those are both examples of constitutionally-based arguments. "Alito doesn't care about battered spouses," is not. Your questions need to be resolved by looking to the constitution and existing case law. Evil Captor's suggests that judges need to resolve questions by independently weighing the social evils of battered wives.

Left Hand of Dorkness

10-31-2005, 10:28 AM

Thanks for the links! It looks as if the case was indeed decided on fourteenth amendment grounds. I thought there was an interesting bit in the opinion:
(b) Roe determined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment's adoption marks the outer limits of the substantive sphere of such "liberty." Rather, the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual's liberty and the demands of organized society
Bricker, am I right in thinking that you consider this to be an example of judicial activism?

Daniel

Guinastasia

10-31-2005, 10:28 AM

Do you have a link to his dissent in Casey?

The link BobLibDem posted has a link to it.

Captain Amazing

10-31-2005, 10:33 AM

Sorry for the second post, but here it is in PDF if anyone finds that easier to read:

http://www.confirmthem.com/?p=1764#comment-62642

Basically, he refers back to O'Connor's test in Webster and Hodgson, which said that if a law imposes an "undue burden" on a woman's ability to get an abortion has to serve a "compelling" state interest. One that doesn't impose an "undue burden" only has to be "rationally" or "reasonably" related to a "legitimate" state interest. So, he says, agreeing with the majority decision, the question is whether or not the section of the law requiring wives to notify their husbands they're getting an abortion is an "undue burden" on them.

In brief, he argues it doesn't meet that standard, because, first, 70% women who get abortions are unmarried, and second, 95% of married women who get abortions notify their husbands. So, requiring spousal notification would only affect a small group of women. And, he says, the spousal notification law has exceptions to it. A woman doesn't have to notify her husband if 1. he is not the father of the child, 2. he can not be found after dilligent effort, 3. the pregnancy is a result of a spousal sexual assault that has been reported to the authorities, or 4. she has reason to believe that notification is likely to result in infliction of bodily harm against her.

So, he argues that this statute doesn't meet the standard set forth in Webster.

Bricker

10-31-2005, 10:35 AM

Thanks for the links! It looks as if the case was indeed decided on fourteenth amendment grounds. I thought there was an interesting bit in the opinion:

Bricker, am I right in thinking that you consider this to be an example of judicial activism?

Daniel

Yes. The entire concept of substantive due process is judicial activism, from Lochner onwards.

Captain Amazing

10-31-2005, 10:39 AM

As to this Alito guy, anyone who thinks that a woman has no right of privacy against an abusive spouse is too ideologically extreme and ethically suspect to serve on the Supreme Court. I think he needs to be filibustered.

Except, Alito didn't say that, and the law didn't say that. In fact, the law made specific exceptions to spousal notification if the pregnancy was a result of spousal sexual abuse or if the woman felt herself in danger of physical harm from her husband.

Evil Captor

10-31-2005, 10:40 AM

Captain Lance Murdoch

10-31-2005, 10:42 AM

After the far right torpedoed the Miers nomination, Bush has rewarded them by picking what appears to be the most conservative judge under consideration.

It is a testament to Bush's weakened political state that he must now kiss the asses of those whole failed to stay loyal to him over his last pick and we all know how Bush feels about loyalty. It now appears that Bush's picks will have to pass what might be called the Rush test. He has given the far right a de-facto veto over his court appointments.

It is also telling that Bush has fallen so far that he has seemingly written off mainstream America in an attempt to hold onto his right-wing base with this pick. I suppose the big fight ahead over this (win or lose) could help him by taking people's minds off the war and the scandals.

I think some Republicans might break with Bush over this pick. It could even go 50-50 with the Veep casting the deciding vote.

Is it just me or did Alito forget to say he was "humbled" by the nomination. I thought everyone in Bushland was supposed to be humbled these days. Except when they are indicted, of course.

Menocchio

10-31-2005, 10:49 AM

I think some Republicans might break with Bush over this pick. It could even go 50-50 with the Veep casting the deciding vote.

It'll never get that close. If those opposing have near that kind of strength, they'll filibuster, and the majority will let them, as it gives them an out.

But I still think this guy, unless he outs himself as a real loony during the hearings, is relatively safe.

Hamlet

10-31-2005, 10:50 AM

Those are both examples of constitutionally-based arguments. "Alito doesn't care about battered spouses," is not. Your questions need to be resolved by looking to the constitution and existing case law. Evil Captor's suggests that judges need to resolve questions by independently weighing the social evils of battered wives.

Bolding and size are mine.

So we should be concerned by a judge who would undo Supeme Court cases that have been ruled on, and affirmed over and over. Do we want a Supreme Court judge who would get rid of SDP, or the rights guaranteed by Griswold, etc.?

Not that I know that Scalito will do that, I don't know much about him. Being against SDP and crying "judicial activism" every time a court enforces the Constitution on a message board, or in academic circles is fine, but would you really support a Supreme Court nominee who would rewrite all of SDP law? THAT would be scary.

Mahaloth

10-31-2005, 10:51 AM

I think he'll get in 52-48, but Democrats will wish they had thrown support toward Miers, since Alito will be more conservative than she ever would have been.

Guinastasia

10-31-2005, 10:56 AM

Except, Alito didn't say that, and the law didn't say that. In fact, the law made specific exceptions to spousal notification if the pregnancy was a result of spousal sexual abuse or if the woman felt herself in danger of physical harm from her husband.

But what good does that do? Some women are too afraid to admit their husbands rape and/or beat them, they just know they can't tell him. Or you'd have women claiming they're abused if they were desparate enough to get an abortion.

jshore

10-31-2005, 11:00 AM

Can I ask a question as an outsider? If this guy was confirmed, how would he be able to assist in over-turning Roe vs. Wade? Would someone have to bring a case before the Surpreme Court dealing with abortion? Or could a ruling be made in absence of any court case needing to be decided? Could it just be mandated from the bench or does someone have to bring something forward that makes it through all the other levels of courts first? Just curious.

I am almost sure that a relevant case has to be brought before the Court. Of course, the Court has leeway in choosing what cases it agrees to hear so it probably would not take long for a relevant case to come before it if it so wanted. (And, I guess legislators in a conservative state wanting to challenge Roe could purposely write a law that they know the lower courts say is in violation of Roe and subsequent cases [like Casey] so that it would work its way up to the Supreme Court.)

I think he'll get in 52-48, but Democrats will wish they had thrown support toward Miers, since Alito will be more conservative than she ever would have been.

What are you talking about? I think some Democrats did say approving things about her to the extent that they commented at all. It is the Rabid Right who torpedoed her nomination. I don't see how the Dems being more outspoken in her favor would have done her any good...It would have just made the rabid Right more rabid. They would take this as proof that she was unacceptable.

jsgoddess

10-31-2005, 11:03 AM

In brief, he argues it doesn't meet that standard, because, first, 70% women who get abortions are unmarried, and second, 95% of married women who get abortions notify their husbands. So, requiring spousal notification would only affect a small group of women.

Saying that the law only affects those that the law affects is really odd. Of the 5% who are affected, 100% are affected. How's that for statistics!

If all of the 5% fall into one of the exceptions, then the law is worthless. If some don't, the law is cruel. Yay?

Captain Amazing

10-31-2005, 11:11 AM

Saying that the law only affects those that the law affects is really odd. Of the 5% who are affected, 100% are affected. How's that for statistics!

If all of the 5% fall into one of the exceptions, then the law is worthless. If some don't, the law is cruel. Yay?

The percentages come into play because of the Webster standard, which says that abortion laws only create an undue restriction if they limit abortions generally. It's not an undue restriction if it only affects a small group of women. This is O'Connor and the Supremes saying this, not Alito. What Alito is saying is that a law that would affect, at most, 5% of 30% of women who get abortions, doesn't limit abortions to the extent that it would be "undue" under Webster.

And "cruel" isn't the standard under Webster. The law could both be cruel and constitutionally permissible.

Captain Amazing

10-31-2005, 11:17 AM

But what good does that do? Some women are too afraid to admit their husbands rape and/or beat them, they just know they can't tell him. Or you'd have women claiming they're abused if they were desparate enough to get an abortion.
Under the law, the woman just has to state that she fits under one of the exceptions. You probably would have people lying, but neither an abused woman's reluctance to admit she's abused or the difficulties in enforcing that provision of the law make it unconstitutional.

jshore

10-31-2005, 11:18 AM

Little Nemo

10-31-2005, 11:20 AM

Ask anyone in the last year who the most conservative possible USSC nominees would be and Alito and Luttig were always at the top of the lists. Alito is the conservatives putting a judge on the Supreme Court.

Will they get away with it? Probably. Unless there's some major surprise waiting, most Republicans will go along with the Conservatives and the Democrats don't have enough votes to block the confirmation.

But a price will be paid. The Meirs and Alito nominations have nakedly revealed how much Conservatives feel entitled to own the courts. This is the equivalent of if Clinton had tried to nominate Coumo to the Supreme Court. The Democrats may lose the confirmation battle but you'll hear Alito's name a million times in the 2006 and 2008 election campaigns.

treis

10-31-2005, 11:21 AM

The percentages come into play because of the Webster standard, which says that abortion laws only create an undue restriction if they limit abortions generally. It's not an undue restriction if it only affects a small group of women. This is O'Connor and the Supremes saying this, not Alito. What Alito is saying is that a law that would affect, at most, 5% of 30% of women who get abortions, doesn't limit abortions to the extent that it would be "undue" under Webster.

Well The Supremes and O'Connor said in this case that this type of analysis is wrong. One must consider the group for whom the law is concerning not all people.

2. Section 3209's husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry [505 U.S. 833, 838] is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father's interest in the fetus' welfare is equal to the mother's protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman's bodily integrity than it will on the husband. Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to this Court's present understanding of marriage and of the nature of the rights secured by the Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69 . Pp. 887-898.

Diogenes the Cynic

10-31-2005, 11:24 AM

It's unconstitutional because it deprives a woman of her right to privacy. No state interest is served by depriving a woman of that right in order to inform on her to her husband. The husband has no right to know unless and until the wife wants to tell him. The governmenet has no right to make that decsion for her. Alita was wrong. His argument was bullshit. A woman does not have to be a victim of spousal abuse in order for her to have a right to privacy. Women are not the property of their husband.

No one would ever say that a wife should have to be informed if her husband was getting a vasectomy. This is no different.

SpartanDC

10-31-2005, 11:25 AM

His dissent in Casey (I haven't been able to read it yet) seems to show that he is staunchly against the right to privacy and would overturn Roe. If Roberts sided against Roe Alito would tip the balance towards overturning it.

Not so. Roe enjoyed the support of a 6-3 majority before Rhenquist died. Let's assume Roberts would vote to overturn Roe (something I'm not very sure he'd do in the first place). He'd simply be replacing Rhenquist's vote. If Alito also voted to overturn Roe, you'd be at 5-4 in favor of keeping it.

Alito's confirmation might put the court within one vote of overturning Roe v. Wade, which, if you're pro-choice, is a risky position. But it wouldn't actually tip the balance in the other direction.

Bricker

10-31-2005, 11:59 AM

Fear Itself

10-31-2005, 12:02 PM

I think he'll get in 52-48, but Democrats will wish they had thrown support toward Miers, since Alito will be more conservative than she ever would have been.It is too bad we will never know. Miers withdrew her nomination not because of lack of support from Democrats, but because of howls of protest from social conservatives.

Left Hand of Dorkness

10-31-2005, 12:02 PM

First, thanks, Bricker, for the clarification. It does seem to my uneducated legal mind that SDP introduces the element of "the social evils of battered wives" into the judge's responsibility: that is, the judge now has to decide whether the battering would constitute an unnecessary burden on the woman, or where it is in relation to "the boundaries between the individual's liberty and the demands of organized society."

Second, a question. The way I heard the Pennsylvania (?) law described on the radio, it had exceptions for cases of abuse or "disfunctional marriages." This last one seems bizarre to me: if a woman is considering having an abortion without telling her husband, how can that possibly NOT be a disfunctional marriage?

Third, I just heard Al Franken on the radio discussing a case in which Alito made a dissent in a discrimination case where he argued that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles--e.g., if I hire an Asian gardener because I sincerely believe that Asians are the best gardeners, then my racial discrimination ought to be legal. Is this a fair description of his belief? That seems wonky to me.

They also mentioned something about Alito's opposition to the Family Medical Leave Act. Can anyone elaborate on this?

(I don't listen a lot to Air America, but Franken's the best they have, and I just finished my David Sedaris CD).

Daniel

Captain Amazing

10-31-2005, 12:07 PM

Well The Supremes and O'Connor said in this case that this type of analysis is wrong. One must consider the group for whom the law is concerning not all people.

Yes, they did. But Alito obviously didn't have the benefit of that decision when writing his dissent.

cmkeller

10-31-2005, 12:10 PM

Digital Stimulus (et al):

This doesn't make sense to me. What would have been the point?

To have the press expend their energy railing against cronyism and inexperience and incompetence and maybe digging up dirt...then, when he nominates someone with a great resume but conservative leanings, Bush makes it clear that he's just giving the public what they want, since everyone thinks it's more important for a candidate to have demonstrated legal/judicial expertise than that they be acceptible to folks on both sides of the Senatorial aisle (e.g., Harry Reid), so the press either eases up...or he plays to the public to present the objections to his conservative nominee as hypocrisy.

elucidator

10-31-2005, 12:13 PM

...that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles...

Can't be right. Too stupid. Sincere racism is ok? This point will be raised, and clarified/squirmed away from. No way in Hell will it stand scrutiny as described, because it is indefensible in the eyes of the vast majority of Americans.

treis

10-31-2005, 12:14 PM

Yes, they did. But Alito obviously didn't have the benefit of that decision when writing his dissent.

No he didn't but it seems pretty obvious to me that piecemeal restriction of abortion would clearly violate previous rulings. It shouldn't be necessary for a potential Supreme Court Justice to be knocked upside the head with a clue by four to deduce this point. His dissent, to me at least, smacks more of a person that disagreed with the fundamental basis of the whole privacy shebang than a Justice carefully applying precident.

BrainGlutton

10-31-2005, 12:18 PM

Is it "political thought" that we need to look at or "judicial philosophy"?

At this level there is no difference, and anyone who tries to argue otherwise is whistling past the graveyard.

Captain Amazing

10-31-2005, 12:23 PM

No he didn't but it seems pretty obvious to me that piecemeal restriction of abortion would clearly violate previous rulings.

Except, the court had already allowed "piecemeal restriction of abortion" in saying parental notification laws could be constitutional.

Bricker

10-31-2005, 12:26 PM

First, thanks, Bricker, for the clarification. It does seem to my uneducated legal mind that SDP introduces the element of "the social evils of battered wives" into the judge's responsibility: that is, the judge now has to decide whether the battering would constitute an unnecessary burden on the woman, or where it is in relation to "the boundaries between the individual's liberty and the demands of organized society."

If it does, then - honestly - what sort of limits exist at all? ANY law could be overturned. If your view is correct, it makes judges into a second, super-legislature.

Second, a question. The way I heard the Pennsylvania (?) law described on the radio, it had exceptions for cases of abuse or "disfunctional marriages." This last one seems bizarre to me: if a woman is considering having an abortion without telling her husband, how can that possibly NOT be a disfunctional marriage?

I agree.

Third, I just heard Al Franken on the radio discussing a case in which Alito made a dissent in a discrimination case where he argued that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles--e.g., if I hire an Asian gardener because I sincerely believe that Asians are the best gardeners, then my racial discrimination ought to be legal. Is this a fair description of his belief? That seems wonky to me.

I don't think so. There is no part of Fourteenth Amendment analysis that turns on subjective belief over objective effect of classifications - so far as I'm aware.

I'd be very surprised to hear that the above describes his personal beliefs, but I suppose it's possible.

BrainGlutton

10-31-2005, 12:27 PM

Yes. The entire concept of substantive due process is judicial activism, from Lochner onwards.

Actually, substantive due process goes back the Dred Scott decision. http://en.wikipedia.org/wiki/Due_process#substantive_due_process And it is the mechanism by which most provisions of the Bill of Rights have been held to bind state as well as federal governments. Do you really want to toss all of that over the side?

Left Hand of Dorkness

10-31-2005, 12:28 PM

Can't be right. Too stupid. Sincere racism is ok? This point will be raised, and clarified/squirmed away from. No way in Hell will it stand scrutiny as described, because it is indefensible in the eyes of the vast majority of Americans.
Well, as I said earlier, my Google fu when it comes to legal cases is pretty shaky; but my first round of digging is turning up nothing of the sort. I've found a case wherein he makes it harder for the plaintiff to prove discrimination (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=961252p), but that's not at all the same thing.

I'll also try to figure out what Franken was on about, but if this rings any bells with anyone, I'd love to hear the details.

Daniel

samclem

10-31-2005, 12:29 PM

."

Third, I just heard Al Franken on the radio discussing a case in which Alito made a dissent in a discrimination case where he argued that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles--e.g., if I hire an Asian gardener because I sincerely believe that Asians are the best gardeners, then my racial discrimination ought to be legal. Is this a fair description of his belief? That seems wonky to me. If you want to read the decision and decide for yourself....

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=971559p

Bricker

10-31-2005, 12:29 PM

At this level there is no difference, and anyone who tries to argue otherwise is whistling past the graveyard.

Just put your lips together, and blow?

I don't agree. The correct and principled judicial philosophy makes political beliefs irrelevant. Do we care if the ref at the Bengals - Green Bay game is a fan of Green Bay or Cincinatti? No. Because his job is to interpret the rules as they exist - not make up new ones during the game.

John Mace

10-31-2005, 12:29 PM

At this level there is no difference, and anyone who tries to argue otherwise is whistling past the graveyard.

Nice little Halloween reference! :)

I disagree. There are Senators who look at qualifications regardless of politics. Surely the Republicans who voted for RBG didn't agree with her politics, and surely some of the Democrats who recently voted for Roberts didn't agree with his politics.

The swing vote, if there is one in this case, will certainly be of that kind. So, even if most Senators vote purely on political grounds, the vote could easily be decided on the basis of qualifications and judicial philosophy, rather than politics.

Captain Amazing

10-31-2005, 12:30 PM

Actually, substantive due process goes back the Dred Scott decision. http://en.wikipedia.org/wiki/Due_process#substantive_due_process And it is the mechanism by which most provisions of the Bill of Rights have been held to bind state as well as federal governments. Do you really want to toss all of that over the side?
I'd disagree with whoever wrote the Wikipedia article there. Dred Scott was a matter of proceedural due process more than substantive due process.

Diogenes the Cynic

10-31-2005, 12:32 PM

What if the rule were that the father of the unborn child had to be informed? Not have a veto power over the abortion - just be informed.
1. What would be the state interest in doing that?

2. How is the state supposed to determine who made a woman pregnant? What if she doesn't want to tell or doesn't know? What if she says it wasn't her husband but some guy she met on the train and she doesn't know his name?

Since there is no way for the state (or in some cases even the pregnant woman) to know who the "father" is without a pre-natal DNA test- Something which is not possible in the first trimester and which requires invasive procedures (which are not risk free) thereafter- then there is no practical way to enforce a law which attempts to inform them. If she is unable or unwilling to say who the "father" is, then what?

I also don't think the father has any right to know unless and until the woman feels like telling him or there is a live birth. If he has a child, then he has a right know. He does not have a right to know that a woman he has had sex with is getting an abortion. Even if the sperm came from him, that becomes completely immaterial as soon as the pregnancy si terminated and I can't see that any state interest is served by telling him (assuming the state even has any way to know who he is, which it doesn't).

Cliffy

10-31-2005, 12:37 PM

Can I ask a question as an outsider? If this guy was confirmed, how would he be able to assist in over-turning Roe vs. Wade?
The federal court system in the U.S. may only rule on actual cases, so he couldn't overturn Roe v. Wade until a case presented itself to the Court with those issues in play. He wouldn't have to wait long, though. Several come available every year, because many states and the federal government are constantly trying to undermine women's rights with unconstitutional (for now, anyway) restrictions on abortion.

--Cliffy

Left Hand of Dorkness

10-31-2005, 12:42 PM

If you want to read the decision and decide for yourself....

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=971559p
Oh, good Lord. Thanks for the link, but that's some dense reading! I only read the dissent, and I've still got a headache.

However, I see nothing in it to back up what I understood Franken to be saying. I figure one of the following is true:
1) I misunderstood Franken;
2) I misunderstood Alito; or
3) Franken (or his flunkies) misunderstood Alito.

My guess is #3, but I've got nothing much to base that on.

Thanks again!
Daniel

treis

10-31-2005, 12:46 PM

Just put your lips together, and blow?

I don't agree. The correct and principled judicial philosophy makes political beliefs irrelevant. Do we care if the ref at the Bengals - Green Bay game is a fan of Green Bay or Cincinatti? No. Because his job is to interpret the rules as they exist - not make up new ones during the game.

Interesting you bring up the point of refs becuase they clearly change their calls depending on the current situation. If a game is generally being played fairly they will swallow thier whistles but if one side begins to break the rules in a way that makes the game unfair they will call the penalty. It should also be noted that the rule book for football is thicker than the Constitution.

I'd like to hear your response to BrianGlutton's post:

Actually, substantive due process goes back the Dred Scott decision. http://en.wikipedia.org/wiki/Due_pr...ive_due_process And it is the mechanism by which most provisions of the Bill of Rights have been held to bind state as well as federal governments. Do you really want to toss all of that over the side?

Left Hand of Dorkness

10-31-2005, 12:46 PM

One more interesting link (http://www.isthatlegal.org/archives/2005/10/white_house_tal.html#more): the Republican talking points on Alito. They list more cases that might be worth discussing.

Daniel

Polycarp

10-31-2005, 12:47 PM

The constitution does not mandate that a law be wise, or caring, or concerned with battered women getting the shit beat out of them.

This is quite correct. The Constitution does no such thing.

On the other hand, some of us are concerned that justice be done.

I gather that that is no longer a concern of conservative Republicans.

Hamlet

10-31-2005, 12:51 PM

Actually, substantive due process goes back the Dred Scott decision. http://en.wikipedia.org/wiki/Due_process#substantive_due_process Just to clear up a misconception, the Wikipedia article and conservatives' spin nothwithstanding, Dred Scott was, is, and will continue to be, a strict constructionist decision.

AHunter3

10-31-2005, 01:00 PM

I might be misunderstanding the strategies in play.

Won't a filibuster trigger the nuclear option and allow the right to more or less slam dunk someone in place?
The "nuclear option" was last seriously discussed when it was easy to float the idea that the President should really have the right to make his appointments without serous impedance.

Since then, our Prez has given us all vivid reason to think his nominees for any position should be strenously vetted.

I was fine with Roberts (go ahead, search up my comments on any Roberts thread) but Alito looks like bad news. I'm open to being convinced otherwise but I hope there are at least a dozen Democratic Senators gathering together some long and interesting speeches to read into the record if need be. (Doing phone books and recipes for trout almondine is so outré)

Diogenes the Cynic

10-31-2005, 01:36 PM

Oh, good Lord. Thanks for the link, but that's some dense reading! I only read the dissent, and I've still got a headache.

However, I see nothing in it to back up what I understood Franken to be saying. I figure one of the following is true:
1) I misunderstood Franken;
2) I misunderstood Alito; or
3) Franken (or his flunkies) misunderstood Alito.

My guess is #3, but I've got nothing much to base that on.

Thanks again!
Daniel
You misunderstood Alito. He did claim (essentially) that racial bias doesn't matter if an employer sincerely believes he is hiring the "best qualified" candidate.

Here is a comment on Judge Alito's dissent from tne text of the majority decision as written by Judge Mckee:
The dissent's position would immunize an employer from the reach of Title VII if the employer's belief that it had selected the "best" candidate, was the result of conscious racial bias. Thus, the issue here, is not merely whether Marriott was seeking the "best" candidate but whether a reasonable factfinder could conclude that Bray was not deemed the best because she is Black. Indeed, Title VII would be eviscerated if our analysis were to halt where the dissent suggests.

Alito also claimed that the racial bias didn't matter "so long as the employer's proffered legitimate reason for the employment decision remains intact ." In Bray Vs. Marriott (the case under discussion), Alito claims that a slight difference in performance evauation scores was sufficient to constitute a "legitmate proffered reason" for the decision but the majority said the evaluations were suspect.

So Franken was right about part of Alito's decision, but it wasn't the only reason for his decsion (and it was a dissent, so obviously the majority didn't buy his arguments).

Bricker

10-31-2005, 01:52 PM

This is quite correct. The Constitution does no such thing.

On the other hand, some of us are concerned that justice be done.

I gather that that is no longer a concern of conservative Republicans.

I'm very concerned that justice be done.

Judges doing whatever they please, without regard to the written law, is not a reliable recipie.

Left Hand of Dorkness

10-31-2005, 01:53 PM

Here is a comment on Judge Alito's dissent from tne text of the majority decision as written by Judge Mckee:

Alito also claimed that the racial bias didn't matter "so long as the employer's proffered legitimate reason for the employment decision remains intact ." In Bray Vs. Marriott (the case under discussion), Alito claims that a slight difference in performance evauation scores was sufficient to constitute a "legitmate proffered reason" for the decision but the majority said the evaluations were suspect.

So Franken was right about part of Alito's decision, but it wasn't the only reason for his decsion (and it was a dissent, so obviously the majority didn't buy his arguments).
Hmm...if McKee said this, it certainly gets Franken off the hook if he does misunderstand Alito's position. However, I'm still having trouble seeing where McKee gets his interpretation of Alito.

It seems to me that Alito was saying that, if I hate Mexicans with all my heart, and a Mexican guy applies for a job as database designer at my company, and he's unable to figure out how to turn the computer on, he can't claim racial discrimination when I don't hire him, since my legitimate reason (his incompetence with computers) remains intact, even if I probably wouldn't have hired him anyways.

That does seem on its face like a reasonable attitude to me, although I've not thought it through very carefully. And it's very different from saying that, if I fail to hire the Mexican guy because I'm explicitly convinced that Mexicans can't turn on computers, that my prejudice is sufficient to protect me from charges of discrimination.

Daniel

AHunter3

10-31-2005, 01:57 PM

In the Marriott case, the implications of Alito's perspective are spelled out, not by Alito (and not dubbed in by an inventive Al Franken) but rather opined by the majority:

The dissent's position would immunize an employer from the reach of Title VII if the employer's belief that it had selected the "best" candidate, was the result of conscious racial bias. Thus, the issue here, is not merely whether Marriott was seeking the "best" candidate but whether a reasonable factfinder could conclude that Bray was not deemed the best because she is Black. Indeed, Title VII would be eviscerated if our analysis were to halt where the dissent suggests.

Evil Captor

10-31-2005, 01:57 PM

I'm very concerned that justice be done.

Judges doing whatever they please, without regard to the written law, is not a reliable recipie.

And how can we know that judges aren't using "strict constructionism" as cover for deciding however they'd like to anyway, especially given that so often the "strict constructyionism" decisions coincide with what you'd expect from a social conservative? Tends to make us on the left rather suspicious, for some reason.

AHunter3

10-31-2005, 01:58 PM

Dangit. Gotta do that Evelyn Woods thing, I guess.

:(

Bricker

10-31-2005, 02:01 PM

AHunter3

10-31-2005, 02:10 PM

Left Hand of Dorkness: It seems to me that Alito was saying that, if I hate Mexicans with all my heart, and a Mexican guy applies for a job as database designer at my company, and he's unable to figure out how to turn the computer on, he can't claim racial discrimination when I don't hire him, since my legitimate reason (his incompetence with computers) remains intact, even if I probably wouldn't have hired him anyways.

I read it more as: if I hate Mexicans with all my heart, and a Mexican guy applies for a job as a database designer and I look at his sample query scripts and his history of work in the field and I decided he just wasn't really qualified, we gotta look for someone else, the Mexican guy can't claim racial discrimination when I don't hire him since I'm citing non-racist reasons for having decided he wasn't really qualified.

In the case cited, the black applicant was rejected as "unqualified" even though taken by themselves her qualifications seem adequate (by Marriott's standards). Court didn't say they could not reject her as unqualified at all, nor did it say that an allegation of racism in such circumstances must always stand, but rather that there was sufficient believable reason to think racism had played a part, and that to point to objective criteria as the reason for her not getting the position wasn't sufficient to demonstrate that those were indeed the reasons.

What Alito was saying might in essence mean, "If you have an excuse for discriminating other than the illegal biased discriminatory reason, you can discriminate on the excuse-reason and not be held accountable for whatever role illegal bias may have played here". That's what the majority felt it amounted to.

Left Hand of Dorkness

10-31-2005, 02:18 PM

AHunter3

10-31-2005, 02:19 PM

Or, as the majority put it (better than I did): The issue is not whether the court can find a legitimate reason why Marriott could have promoted Riehle but whether Marriott had a legitimate reason that was not the result of racial animus. "[T]he judge's function is not to weigh the evidence and determine the truth of the matter, but rather to determine if there is a genuine issue for trial. The district court cannot decide issues of fact at the summary judgment stage."

Both the actions of the majority and the statements that comprise the dissent need to be understood in the context of ruling on a summary judgment.

Sal Ammoniac

10-31-2005, 02:22 PM

Alito's Bray v. Marriott dissent could be read as indicating nothing about his attitudes toward race, and everything about his pro-business mindset and his reluctance to let the courts interfere with "business judgment." I have contended all along that Bush is more a creature of big-business interests than he is of the religious right. The Alito nomination looks like confirmation. I'm curious what the religious right will think of him. It's pretty clear to me that he's not one of them, but it could be that all they care about is Roe. If that's the case, he's probably their man. At least until further revelations!

Shodan

10-31-2005, 02:25 PM

And how can we know that judges aren't using "strict constructionism" as cover for deciding however they'd like to anyway, especially given that so often the "strict constructyionism" decisions coincide with what you'd expect from a social conservative? Because by definition a strict constructionist can always point directly to the part of the Constitution that supports the decision. It is the ones basing their decisions on emanating penumbrae and the like that need to incur our suspicions - I disremember any liberal justice finding a right to keep and bear arms, or a fetal right to life, anywhere under substantive due process or suchlike.

Somehow or other, all these "rights" that seem to appear so magically once a certain kind of legal scholar unleashes their fertile imaginations always come off the liberal playbook.

If you can imagine. ;)
I could similarly see a violation of the fourteenth amendment: are men ever required to consult with their wives before receiving a medical treatment?
I don't believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would do my vasectomy.

Regards,
Shodan

Left Hand of Dorkness

10-31-2005, 02:41 PM

I don't believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would [snip]
Really? That's pretty surprising--what would he have done if you'd been unmarried?

Daniel

BrainGlutton

10-31-2005, 02:42 PM

I don't believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would do my vasectomy.

A cad is a man who doesn't tell his wife he's sterile until after she's pregnant. :D

ElvisL1ves

10-31-2005, 02:49 PM

What Alito was saying might in essence mean, "If you have an excuse for discriminating other than the illegal biased discriminatory reason, you can discriminate on the excuse-reason and not be held accountable for whatever role illegal bias may have played here". That's what the majority felt it amounted to.That might also indicate how he'd rule on gay marriage - that a state's ability to dream up a superficially-nondiscriminatory excuse for banning it, however flimsy and bullshitty and totally ad hoc, is enough reason to keep on discriminating. That would be true of any other equal protection issues, if he's consistent.

Let's hope it doesn't come down to single issues that generate much more heat than light, however. It's enough to consider a candidate philosophically unqualified for what is indeed a "superlegislature" that "can do whatever it wants to" (sorry, Bricker, but that's just what the SCOTUS is) if he's willing to ignore or even reverse essentially the entire 20th century of jurisprudence in the service of an obsolete and idiosyncratic POV that disagrees with it, precedent and stare decisis be damned. That would be judicial activism in the extreme, and it continues to puzzle me how one could be for that and still opposed to "JA" under any definition.

If that's who this guy is, he needs to be turned down for the sake of the country just as Bork needed to be turned down, and that's what the Democratic leadership is sounding like they plan to do.

Shodan

10-31-2005, 02:51 PM

Really? That's pretty surprising--what would he have done if you'd been unmarried?

Daniel
No idea. There was also a waiting period. A week, IIRC.

As I say, I don't think any of this was required by law.

Regards,
Shodan

Left Hand of Dorkness

10-31-2005, 03:03 PM

No idea. There was also a waiting period. A week, IIRC.
Good grief. You want to pack heat, you gotta wait seven days. You wanna shoot blanks, you gotta wait seven days. Man can't win for losing.

Daniel

Polycarp

10-31-2005, 03:07 PM

Because by definition a strict constructionist can always point directly to the part of the Constitution that supports the decision. It is the ones basing their decisions on emanating penumbrae and the like that need to incur our suspicions - I disremember any liberal justice finding a right to keep and bear arms, or a fetal right to life, anywhere under substantive due process or suchlike.

Somehow or other, all these "rights" that seem to appear so magically once a certain kind of legal scholar unleashes their fertile imaginations always come off the liberal playbook.

If you can imagine. ;)
I don't believe it was a legal requirement, but I had to produce a permission slip signed by my wife before the doctor would do my vasectomy.

Regards,
Shodan

Okay, then. Let's play strict constructionist, textualist mode:

Abortion is legal. Amendment IV's guarantee of the right to be secure in one's person against searches and seizures. If the requirement by law that one must provide one's body to house another person for the duration of his/her gestation is not a "taking" in the legal sense, I'd be hard put to come up with a working definition other than the bar on "legal kidnapping" without criminal-accusation justification.

Child pornography is legal; so is open advocacy of revolution. Amendment I gives no exceptions to freedom of speech or of the press. All those "clear and present danger" and "community standards" exceptions are penumbrae and emanations. (Paging Hugo Black!)

Conviction, or even trial, by both federal and state courts for the same allegedly-criminal act is illegal. Amendments V and XIV ban double jeopardy. The exception that different jurisdictions can retry is another penumbra.

Gay marriage is legal. Equal protection clause of Amendment XIV says so. The oddball tests concocted by constitutional lawyers on levels of scrutiny are, guess what, not in the text. Two sets of two people being treated differently is clearly a violation of equal protection. (By the way, Federal DOMA is unconstitutional. Article IV does not authorize Congress to pass it.)

State laws regulating firearms are illegal. Privileges and Immunities Clause of Amentment XIV, combined with Amenment II.

As a matter of fact, the guarantees of Amendments II through VIII don't say they're talking about the Federal government; construing them to do so is traditional, but, you guessed it, it's another one of those penumbrae.

And finally: Amendment IX actually means something. It says, in so many words, just because we didn't think to include a verbatim guarantee of a right doesn't mean that it's not a right. So the door is wide open for judicial activism about rights. Because the Constitution explicitly says so.

Care to rethink your ideas about strict constructionism?

Shodan

10-31-2005, 03:33 PM

And finally: Amendment IX actually means something. It says, in so many words, just because we didn't think to include a verbatim guarantee of a right doesn't mean that it's not a right. So the door is wide open for judicial activism about rights. Because the Constitution explicitly says so.

Care to rethink your ideas about strict constructionism?
No, the Tenth Amendment is the one that you left out. Because the Constitution doesn't say a fricking word establishing judicial activism as a source of rights. It says that it is the states or the people who can be "activists" about rights. Not judges. So that door slams shut in your face pretty hard. Sorry about that.

The rest of your "analysis" is pretty hit and miss. The big error you are making is to assume that the Constitution establishes things it doesn't address - like gay marriage. The federal courts may not forbid gay marriage, I agree with you on that. They may not establish it either. Remember that Tenth Amendment I mentioned? Slam again.

So this part:The oddball tests concocted by constitutional lawyers on levels of scrutiny are, guess what, not in the text.is quite correct. Therefore, someone bringing suit in federal court to stop a state from establishing gay marriage should be kicked out. And guess what - if he wanted to force a state to recognize his gay marriage, he should get the same treatment.

Same thing for abortion. States may regulate, the feds may not - the Constitution doesn't establish any duty by the federal courts to regulate abortion.
Conviction, or even trial, by both federal and state courts for the same allegedly-criminal act is illegal. Amendments V and XIV ban double jeopardy. The exception that different jurisdictions can retry is another penumbra.Works for me.

Regards,
Shodan

Left Hand of Dorkness

10-31-2005, 03:38 PM

The rest of your "analysis" is pretty hit and miss.
Just for those of us playing along at home, you agree that child pornography and advocating violent revolution ought to be legal? That's the one that I think creates the most trouble for a strict constructionist.

Daniel

elucidator

10-31-2005, 03:39 PM

Because the use of textualism, as a general rule, provides a more solidly objective process for reaching a result.
Or, alternatively, provides a rationale for justifying opinions already dearly held. The "objectivity" you speak of is little more than interpretation given another name, the exclusionary principle writ large.

The famous Borkery about there being no right to privacy in the Constitution leaps to mind. Most reasonable persons assume a right to privacy exists, simply because a civilized life would be near impossible without it, and a state that can deny such privacy is well along towards tyranny. That the Constitution does not explicitly state such a right can be reasonably held to be an ommission on the part of the Founding Fuckups. Or, alternatively, one can reasonably argue that the right to privacy is the very foundation of the right to be free of unreasonable search. After all, is not an unreasonable search nothing more than an unjustifiable abridgement of the right to privacy, whether or not that right is explicitly stated? Might we not reasonably infer that they regarded some rights as being so fundamentally obvious as to not require explicit enumeration?

Similarly, the right to control ones own body and the reproductive processes thereof is fundamental enough to be presumed. Only if we are willing to assume that the Constitution creates the rights we hold to be self-evident can we pretend that they cease to exist if denied the approval of the FFs.

Only if the Constitution were written with utter clarity that permitted no disagreement as to meaning could the "textualist" argument hold any special significance. Given that intelligent scholars and reasoning lawyers have, indeed, derived different "interpretations" is reason enough for us to believe that such is possible, hence, legitimate. And if seeing "penumbra" is as legitimate and intelligent a position as any other, then it necessarily follows that "textualism" has no special mojo, it is not a trump card to be played in order to thwart progress and/or change one finds disagreeable.

Left Hand of Dorkness

10-31-2005, 03:42 PM

Just for those of us playing along at home, you agree that child pornography and advocating violent revolution ought to be legal?
Small words can create big rudeness. This should read, do you agree...?

I'm almost certain that you don't agree, and I don't want to cast you in with child pornographers; instead, I want to hear your reasons for believing that a strict reading of the constitution allows the outlawing of distributing child pornography. (Note the "distributing" part--I think a strict constructionist can outlaw the production of most child porn).

Daniel

Shodan

10-31-2005, 04:00 PM

Just for those of us playing along at home, you agree that child pornography and advocating violent revolution ought to be legal? That's the one that I think creates the most trouble for a strict constructionist.

on preview, you also said this:

Small words can create big rudeness. This should read, do you agree...?

I'm almost certain that you don't agree, and I don't want to cast you in with child pornographers; instead, I want to hear your reasons for believing that a strict reading of the constitution allows the outlawing of distributing child pornography. (Note the "distributing" part--I think a strict constructionist can outlaw the production of most child porn).
No harm, no foul - I understood what you meant.

Actually, I was trying to formulate the reasons that I thought outlawing the production was legitimate. Once I did that, I was going to say that the distribution of such material would be outlawable because it furthered the already-illegitimate production.

To stall while I attempt to formulate my position In order to be sure we understand each other :D on what grounds do you think kiddie porn is outlawable as a Constitutional issue? I was going to say that it, too, was a state's issue, since age of consent is set by the states. Thus nobody could either outlaw kiddie porn, nor force it to be allowed, under the First Amendment.

If it helps, I will stipulate that porn in general is not outlawable by the Feds, except if it is part of interstate commerce. If a person wants to keep a locally produced stash of fifty issues of Cheerleaders in Heat, the Supreme Court has nothing to say to him.

I will attempt to return to this thread later, if trick-or-treat does not interfere. It is an interesting question, and I have not fully thought thru my position.

Regards,
Shodan

Left Hand of Dorkness

10-31-2005, 04:07 PM

Actually, I was trying to formulate the reasons that I thought outlawing the production was legitimate. Once I did that, I was going to say that the distribution of such material would be outlawable because it furthered the already-illegitimate production.

To stall while I attempt to formulate my position In order to be sure we understand each other :D on what grounds do you think kiddie porn is outlawable as a Constitutional issue? I was going to say that it, too, was a state's issue, since age of consent is set by the states. Thus nobody could either outlaw kiddie porn, nor force it to be allowed, under the First Amendment.
Scott Plaid, if you're reading this, this is how to use the strikethrough feature ;).

From my standpoint, the courts have some leeway to interpret the Constitution. They're allowed to say, "Okay, freedom of speech is fine and all, but distributing kiddie porn is taking freedom of the press too far, since it inherently profits off of harming people and encourages future harm." Similarly, they can say, "It's dumb for the Constitution to protect speech which creates a clear and present danger." The courts may, in other words, interpret the constitution as a living document.

If the courts may interpret certain rights narrowly (e.g., saying that freedom of speech isn't absolute), it's difficult to imagine that they cannot interpret other rights widely. If they are unable to move in both directions, then the history of the country would end up being one of rights perpetually diminishing in power, and that's not a very good model.

If they do not have latitude in interpreting rights, then we get some very uncomfortable results.

Daniel

jshore

10-31-2005, 04:09 PM

No, the Tenth Amendment is the one that you left out. Because the Constitution doesn't say a fricking word establishing judicial activism as a source of rights. It says that it is the states or the people who can be "activists" about rights. Not judges. So that door slams shut in your face pretty hard. Sorry about that.

Oh, give me a break. This is sophistry. The judges are the ones who are there to interpret what rights we have from the Constitution.

You are not only slamming the door on judicial activism; you are slamming the door on the whole freakin' judicial branch (at least related to Constitutional law). You might as well have them close their doors and head home (or at least, restrict their rulings to just interpretting laws written by legislators).

John Mace

10-31-2005, 04:11 PM

Just for those of us playing along at home, you agree that child pornography
It's a state issue. States aren't limited in their authority by the federal constitution.

and advocating violent revolution ought to be legal? That's the one that I think creates the most trouble for a strict constructionist.
Doesn't bother me. I'm pretty much a free speech absolutist.

But Polycarp is using examples of strict constructionism, and there aren't many strict constructionists out there. Scalia, for instance, is not a strict constructionist-- he's an originalist who uses a textualist approach to determine original intent.

Left Hand of Dorkness

10-31-2005, 04:18 PM

It's a state issue. States aren't limited in their authority by the federal constitution.
Really? I know that they were not originally, but I thought later amendments so limited them. Under a strict constructionist reading, then, does that mean that a state could throw me in prison for saying, "My senator is a jackass," or that my state could require me to convert to Southern Baptism or else pay a hefty surcharge on my income tax?

These seem to me to be consequences almost as unfortunate as allowing kiddie porn.

Daniel

jshore

10-31-2005, 04:19 PM

I apologize that my last post was a little strong in wording. What I ought to say is just that it is seems to me that one is making a decision about which amendment should take precedence in a way that happens to support your basic philosophy.

I am basically of the belief that "strict constructionism" and its variants are essentially code words for a judicial philosophy that really have no better objective justification than other alternatives.

MovieMogul

10-31-2005, 04:30 PM

OK, so a reader at Andrew Sullivan's blog (http://www.andrewsullivan.com) wrote the following:I linked to the website listing Alito cases and picked one at random - Doe v. Groody. Take a look at Alito's dissent.

What's interesting about it is that it reaches a statist result (i.e., he believed that a search warrant authorized the search of two persons who were living in the residence to be searched but who were not listed among those persons to be searched) by ignoring the plain text of the warrant and relying, instead, on the equivalent of "what the legislature (in this case, the officers who drafted the application for the warrant and the proposed warrant) meant the warrant to say".

The warrant appears not to conform to the application - it was drafted more narrowly (perhaps by mistake), but c'est la vie. That's not "strict constructionism" at all; it's pure originalism. He didn't decide the case strictly according to the text, using "originalism" to determine the meaning of an ambiguous provision. Instead, he overrode the text by reference to intent.
Here (http://caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf)'s the link. I'm not legally trained so maybe I'm missing some important points--any legal Dopers want to comment on the assertion and dissension?

John Mace

10-31-2005, 04:32 PM

Really? I know that they were not originally, but I thought later amendments so limited them.
Well, if we're talking "strict construction", then the 14th amendment would have spawned incorporation (http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29) as it has. Even today, not all of the bill or rights have been incorporated. It was a slow process.

Under a strict constructionist reading, then, does that mean that a state could throw me in prison for saying, "My senator is a jackass," or that my state could require me to convert to Southern Baptism or else pay a hefty surcharge on my income tax?
I don't know about converting, but some of the states did support specific churches with tax dollars in the early 19th century.

These seem to me to be consequences almost as unfortunate as allowing kiddie porn.
But states have constitutions, too. In some cases they are stricter than the federal one (that's how SSM was legalized in MA). I don't understand this fear that the states are like children and must be supervised by the feds.

A "strict constructionist" would say: if you want to apply the bill of rights to the states, pass an amendment that says to do just that. If you can't, then maybe it's not something the states want done.

John Mace

10-31-2005, 04:34 PM

Well, if we're talking "strict construction", then the 14th amendment would have spawned incorporation (http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29) as it has.

Oops. That should be "wouldn't have spawned.."

Left Hand of Dorkness

10-31-2005, 04:38 PM

A "strict constructionist" would say: if you want to apply the bill of rights to the states, pass an amendment that says to do just that. If you can't, then maybe it's not something the states want done.
Whereas I would say, given how long they've applied, it'd be unwise to stop applying them suddenly. It could be that no such amendment exists because in our current judicial climate it's unnecessary.

And I'm not worried about states acting like children: I'm worried about states being overrun with prejudice. It's happened once or twice before in our history, I recall, and I think that a federal government can act as a buffer against that sort of thing.

Daniel

John Mace

10-31-2005, 04:46 PM

I am basically of the belief that "strict constructionism" and its variants are essentially code words for a judicial philosophy that really have no better objective justification than other alternatives.
The real issue, as I see is it, is whether or not originalism* is a judicial philosophy that should disqualify someone from the SCOTUS. That is what some people seem to be advocating. I happen to think it's a very good method of judicial interpretation, maybe even the best method. But I wouldn't disqualify other schools of thought outright.

*I dislike the term "strict constructionism", so let's assume we're talking about Scalia-style originalism

John Mace

10-31-2005, 04:52 PM

Whereas I would say, given how long they've applied, it'd be unwise to stop applying them suddenly. It could be that no such amendment exists because in our current judicial climate it's unnecessary.
I would often agree (although not in every circumstance). I would prefer that some decisions hadn't been made, but many of them are so embedded in out legal system now that you'd do more harm than good by overturning them.

And I'm not worried about states acting like children: I'm worried about states being overrun with prejudice.
How is that different?

It's happened once or twice before in our history, I recall, and I think that a federal government can act as a buffer against that sort of thing.
And when "prejudice" resulted in government enforced racial discrimination, I would agree with you. The 14th amedment actually does place restrictions on the states. It speaks specifically to what states may not do.

elucidator

10-31-2005, 04:52 PM

... don't understand this fear that the states are like children and must be supervised by the feds...
I take it you've never lived in Texas.

John Mace

10-31-2005, 04:59 PM

I take it you've never lived in Texas.
Too much brush, and it seems to always need clearing.

But that's a actually a good point. Texas does, shall we say "push the envolope" on some issues, and when they institutionalize* racial discrimination, a plain reading of the constitution justifies a slap on the wrist.

*that is to say, put the force of law behind it

Hamlet

10-31-2005, 05:10 PM

As long as Alito is left of Bricker and Shodan, the Constitution will survive.

Left Hand of Dorkness

10-31-2005, 05:22 PM

How is that different?
I don't know many children with a history of turning a blind eye to lynchings, for one thing.

The state has nothing sacred about it that makes it the wisest level of government. There's no reason why it's going to make better decisions than the county, the neighborhood patrol, or the federal government. A tension between all these levels seems ideal.

Daniel

Rachm Qoch

10-31-2005, 05:57 PM

and advocating violent revolution ought to be legal? That's the one that I think creates the most trouble for a strict constructionist.

Doesn't bother me. I'm pretty much a free speech absolutist.
:dubious: Advocating terrorist attacks is OK too?

John Mace

10-31-2005, 06:35 PM

I don't know many children with a history of turning a blind eye to lynchings, for one thing.
I think we're entering the land of snark now...

But let me ask you: What specifically did the feds do to stop lynchings?

elucidator

10-31-2005, 06:48 PM

...But let me ask you: What specifically did the feds do to stop lynchings?
Not nearly enough. A legend has surfaced over recent years that paints the FBI as palladins of civil rights, visiting Federal wrath upon violent bigots. It is the utterest rot. Along with the charming myth of JFK as the original champion of civil rights. For all his faults, and they were legion, it was LBJ who did the heavy lifting.

John Mace

10-31-2005, 06:58 PM

:dubious: Advocating terrorist attacks is OK too?

Define "advocating". I can't say I've given this a whole lot of thought, but if you mean standing on a soapbox and saying "I think terrorism against the US is justified", then probably yes.

Hamlet

10-31-2005, 07:03 PM

Define "advocating". I can't say I've given this a whole lot of thought, but if you mean standing on a soapbox and saying "I think terrorism against the US is justified", then probably yes.If the right to free speech is absolute, I think it would have to cover the actual incitement to commit crimes, and perhaps even the speech among co-conspirators in planning those crimes. It could also disallow laws that forbid lying to investigators or aiding and abetting by speech.

elucidator

10-31-2005, 07:05 PM

Well, of course, "absolute" is a relative term.

Hamlet

10-31-2005, 07:25 PM

Well, of course, "absolute" is a relative term.Absolutely.

Updike

10-31-2005, 07:37 PM

or at least, restrict their rulings to just interpretting laws written by legislators.

YES, that's precisely the point. Nothing more.

Hamlet

10-31-2005, 07:41 PM

YES, that's precisely the point. Nothing more.How about interpreting the Constitution too? Surely that's part of their job, isn't it?

Left Hand of Dorkness

10-31-2005, 07:43 PM

I think we're entering the land of snark now...

But let me ask you: What specifically did the feds do to stop lynchings?
Maybe the land of snark, but my point is that referring to state behavior as childish really trivializes the issues I'm talking about.

I'm not sure what feds did to stop lynchings. That's a great question. I do know, however, that the feds did a lot to stop segregation and Jim Crow, and these are also behaviors that I don't consider childish, but rather consider to represent a segment of the country being overrun with prejudice, and the country as a whole stepping in to rectify the situation.

Daniel

Bricker

10-31-2005, 07:52 PM

Whereas I would say, given how long they've applied, it'd be unwise to stop applying them suddenly. It could be that no such amendment exists because in our current judicial climate it's unnecessary.

I agree with that. Although I believe substantive due process is flawed, I also agree that we've built a complex system of case law that relies on it, and it would be nearly suicidal to simply erase all of that in one fell swoop.

So I don't say that we should bring a large eraser to the last 100 years of case law.

I DO say, however, that we stop the madness. What the system has built, we - generally - live with. What we stop doing is continue to add SDP-based precedent to the body of case law.

Hamlet

10-31-2005, 09:09 PM

I DO say, however, that we stop the madness. What the system has built, we - generally - live with. What we stop doing is continue to add SDP-based precedent to the body of case law.Stop the "madness"? Just for once, how about you post to a thread about the Constitution and refrain from overblown rhetoric, using the word "Lochner", or blaming every poor judicial decision on what you call "activism". If you're feeling especially spry, perhaps you could avoid setting your little "judges should find justice" trap and making wagers. Just for a change, you know. Broaden your horizons.

Bricker

10-31-2005, 09:33 PM

Stop the "madness"? Just for once, how about you post to a thread about the Constitution and refrain from overblown rhetoric, using the word "Lochner", or blaming every poor judicial decision on what you call "activism". If you're feeling especially spry, perhaps you could avoid setting your little "judges should find justice" trap and making wagers. Just for a change, you know. Broaden your horizons.

Geeze. Do I have to trade in my car and quit watching my favorite TV shows too? Ye gods, man, leave me something.

elucidator

10-31-2005, 09:47 PM

...I DO say, however, that we stop the madness. What the system has built, we - generally - live with. What we stop doing is continue to add SDP-based precedent to the body of case law.
If it is not legitimate to use judicial power to promote social change, why is legitimate to use it to impede?

Updike

10-31-2005, 11:30 PM

If it is not legitimate to use judicial power to promote social change, why is legitimate to use it to impede?

It isn't. But it's generally the left that likes to make shit up and try to justify it afterword.

John Mace

11-01-2005, 12:37 AM

Maybe the land of snark, but my point is that referring to state behavior as childish really trivializes the issues I'm talking about.
I didn't say state behavior was childish.

I'm not sure what feds did to stop lynchings. That's a great question. I do know, however, that the feds did a lot to stop segregation and Jim Crow, and these are also behaviors that I don't consider childish, but rather consider to represent a segment of the country being overrun with prejudice, and the country as a whole stepping in to rectify the situation.
So why did you bring up lynchings then if it doesn't support your argument?

It doesn't take more than the plain reading of the 14th amendment to overturn Jim Crow laws. I don't see a problem with that. When the Federal courts require forced busing to achieve some broad social goal, that's reaching far being the intent of the law. When the SCOTUS upholds racial preferences in Affirmative Action policies, that goes against the plain text reading of the 14th amendment.

John Mace

11-01-2005, 12:41 AM

If it is not legitimate to use judicial power to promote social change, why is legitimate to use it to impede?
Given that Bush may nominate 3 SC justices by the time he leaves office, are you sure you want that body to be promoting social change? Change isn't unidirectional, as I'm sure you know.

elucidator

11-01-2005, 12:42 AM

So, that's it? All we gotta do is dump affirmative action and you'll start munching granola and singing "Kumbaya"?

Fear Itself

11-01-2005, 05:06 AM

But it's generally the left that likes to make shit up and try to justify it afterword.How's the search for WMD coming?

BobLibDem

11-01-2005, 05:26 AM

Just an observation. It's a wee bit difficult to take your observations seriously when it comes to these instant fillibuster (http://boards.straightdope.com/sdmb/showpost.php?p=6384141&postcount=133) requests.

Aye, ye got me there. But my prophesies are what should be, not necessarily what will be.

I don't buy the argument that conservatives want "strict constructionism" or "literalism" or whatever term that you choose. Let's face it- each side has an agenda. If a strict reading of the Constitution serves the agenda, then that's what is read. If you have to go beyond what's written to serve the agenda, then that's what you do. Look how the liberal and conservative wings of the court flip-flopped in Bush v Gore. A strict reading of the Constitution would have found nothing to justify overruling the Florida Supreme Court, yet look how the votes fell.

Let's hope that this radical appointment wakes up the progressive crowd and they get off their asses in 2008 and vote to take back the country. I look forward to the day when President John Edwards replaces Justice Scalia.

Left Hand of Dorkness

11-01-2005, 05:30 AM

I didn't say state behavior was childish.
Fine. YOu said you don't understand this fear that the states are like children. I have no such fear. Does that suffice?

So why did you bring up lynchings then if it doesn't support your argument?
This was an outright poor choice on my part; thus the comment about "great question," and the shift of subject.

I'll shift subject again: I believe that the court's mandating of the first amendment on the state level has been a very positive thing, especially for nonChristians in the south, as one group.

Daniel

ambushed

11-01-2005, 06:26 AM

Judges doing whatever they please, without regard to the written law, is not a reliable recipie.

I'll happily read you say that was just a wee bit of hyperbole. Otherwise, would you be so kind as to cite and link to an important case in which judges did whatever they pleased totally without regard to the written law?

ShibbOleth

11-01-2005, 07:08 AM

It is a testament to Bush's weakened political state that he must now kiss the asses of those whole failed to stay loyal to him over his last pick and we all know how Bush feels about loyalty. It now appears that Bush's picks will have to pass what might be called the Rush test. He has given the far right a de-facto veto over his court appointments.

Just curious -- what is Rush & Co.'s spin on this whole situation? Do they posit that it's GWB's craftiness in action or did they actually turn against him?

Updike

11-01-2005, 07:57 AM

Let's hope that this radical appointment wakes up the progressive crowd and they get off their asses in 2008 and vote to take back the country. I look forward to the day when President John Edwards replaces Justice Scalia.

Even if you got a President John Edwards, where do you think Justice Scalia is going, anyway? Does he have some kind of illness the rest of us aren't privy to, or???

BobLibDem

11-01-2005, 08:00 AM

Even if you got a President John Edwards, where do you think Justice Scalia is going, anyway? Does he have some kind of illness the rest of us aren't privy to, or???

Well he was born in 1936. If Edwards were to be elected in 2008 and reelected in 2012, Scalia would be have to live and serve beyond 80 in order to avoid an Edwards nomination to replace him. Not sure what the actuarial odds are of that, but I'm just guessing that he wouldn't.

Bricker

11-01-2005, 09:25 AM

Well he was born in 1936. If Edwards were to be elected in 2008 and reelected in 2012, Scalia would be have to live and serve beyond 80 in order to avoid an Edwards nomination to replace him. Not sure what the actuarial odds are of that, but I'm just guessing that he wouldn't.

Please pass this happy train of thought on to Justice Stevens (Born: April 20, 1920), would you? I'd love to get him retired and replaced.

Polycarp

11-01-2005, 09:28 AM

Please pass this happy train of thought on to Justice Stevens (Born: April 20, 1920), would you? I'd love to get him retired and replaced.

Three words for you, sir: Oliver Wendell Holmes (http://www.arlingtoncemetery.net/owholmes.htm)

Bricker

11-01-2005, 09:31 AM

I'll happily read you say that was just a wee bit of hyperbole. Otherwise, would you be so kind as to cite and link to an important case in which judges did whatever they pleased totally without regard to the written law?

Wickard v. Filburn, 317 US 111 (1942) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZS.html)

BobLibDem

11-01-2005, 09:33 AM

Please pass this happy train of thought on to Justice Stevens (Born: April 20, 1920), would you? I'd love to get him retired and replaced.

Well of course. One never knows if you'll live as long as the Gipper or as short as Tippecanoe. But I'd say the odds of Scalia serving past a theoretical second Edwards term are less than 50%.

John Mace

11-01-2005, 09:33 AM

This was an outright poor choice on my part; thus the comment about "great question," and the shift of subject.
OK.

I'll shift subject again: I believe that the court's mandating of the first amendment on the state level has been a very positive thing, especially for nonChristians in the south, as one group.
Can you be more specific? Which laws were common in "the South" and have now been rendered null because the SCOTUS mandated the 1st amendment on the states?

John Mace

11-01-2005, 09:35 AM

So, that's it? All we gotta do is dump affirmative action and you'll start munching granola and singing "Kumbaya"?
I don't recognize that song. Can you hum a few bars?

As for granola-- it's a favorite. I'm a child of the 60s in case you didn't know. Peace, Love, and Rock 'n Roll, baby!

elucidator

11-01-2005, 09:41 AM

...I'm a child of the 60s in case you didn't know...

A child of the 60's? Oh, dear. Your mom.....did she ever call herself "Starchild"?

Bricker

11-01-2005, 09:45 AM

Three words for you, sir: Oliver Wendell Holmes (http://www.arlingtoncemetery.net/owholmes.htm)

I'm on your side of this discussion. I think it's very likely Scalia, a healthy man, would serve up to and past age 80.

Fear Itself

11-01-2005, 09:58 AM

Please pass this happy train of thought on to Justice Stevens (Born: April 20, 1920), would you? I'd love to get him retired and replaced.Is he not qualified in your eyes? Or do you object to his liberal stance on the issues?

Bricker

11-01-2005, 10:08 AM

Is he not qualified in your eyes? Or do you object to his liberal stance on the issues?

I don't mind his personal liberal views, and he's certainly objectively qualified.

However, his opinions are often unwise, in that they reflect a judicial philosophy that I'd like to see marginalized or even eliminated on the Court.

For example, he was the author of Kelo v. City of New London, ruling that eminent domain could be used to forcibly take private property from people and turn it over to developers. I find that dangerous - a willingness to ignore the reasonable meaning of "public use" in favor of a more expansive view that defines public use as any purpose that the government wants. This is what comes from permitting judges to ignore the text in favor of imposing their own view of "justice".

Fear Itself

11-01-2005, 10:16 AM

I don't mind his personal liberal views, and he's certainly objectively qualified.

However, his opinions are often unwise, in that they reflect a judicial philosophy that I'd like to see marginalized or even eliminated on the Court.So in considering Alito for confirmation, objective qualifications are not enough?

John Mace

11-01-2005, 11:14 AM

A child of the 60's? Oh, dear. Your mom.....did she ever call herself "Starchild"?
No, no, no. I grew up in the 60s. My (late) parents grew up during the Depression. I'm an old fart-- not as old as you, but close. :)

Gadarene

11-01-2005, 11:24 AM

John Mace:
Scalia, for instance, is not a strict constructionist-- he's an originalist who uses a textualist approach to determine original intent.

We've had this discussion before, but to the extent that originalism and textualism are different things, Scalia is more the latter than the former. His long-running dispute with Justice Breyer over the value of legislative history makes this clear. Scalia is much less concerned with what the legislators (or the Framers) intended when crafting the law than he is with what the text of the statute (or the Constitution) can plainly and reasonably be interpreted to mean.

John Mace

11-01-2005, 11:31 AM

John Mace:
We've had this discussion before, but to the extent that originalism and textualism are different things, Scalia is more the latter than the former.
If someone asks me if I'm a mammal or a primate, I'd say both. To the extent that those are different things, I'm more the latter than the former. But they're not different things. I said in an earlier thread tht Scalia could be described, in the Genus species mode, as an Originalus textualensis. His goal is Originalism. His method to achieve that goal is textualism.

MovieMogul

11-01-2005, 11:47 AM

50 posts later (http://boards.straightdope.com/sdmb/showpost.php?p=6745362&postcount=124). Nobody has any comments on his Doe vs. Groody opinion?

Gadarene

11-01-2005, 11:48 AM

There are non-originalist textualists. There are non-textualist originalists. There are originalist textualists whose interpretation and application of originalism and textualism lead them to different conclusions, case by case, than Scalia. Just so that's clear.

Textualism is not wholly contained within originalism, nor is it necessarily predictable and determinate.

Haven't you read that Farber book yet? :)

MovieMogul

11-01-2005, 11:51 AM

Actually there's a new response (http://www.andrewsullivan.com/index.php?dish_inc=archives/2005_10_30_dish_archive.html#113085335464566965) that clarifies things. Never mind.

John Mace

11-01-2005, 11:58 AM

There are non-originalist textualists.
Are there? Can you give an example?

There are non-textualist originalists.
Agreed. There are non-primate mammals.

There are originalist textualists whose interpretation and application of originalism and textualism lead them to different conclusions, case by case, than Scalia. Just so that's clear.
Certainly. It's not a mathematical formula with only one answer.

Textualism is not wholly contained within originalism, nor is it necessarily predictable and determinate.

Haven't you read that Farber book yet? :)

I haven't been able to find it. I actually tried to buy it a Borders a few months ago, but they didn't carry it. I'll check Amazon.

I'll admit that I'm using Scalia's definitions, but if there are other commonly held definitions (by legal scholars), I'd be interested in seeing them.

At any rate, this does end up being a bit of a semantic debate. Certainly no on has a copywrite on those terms. :) It would be interesting to see someone who calls himself a textualist, but eschews originalism. Why would he adhere to the text if not to adhere to the original intent?

Evil Captor

11-01-2005, 12:06 PM

50 posts later (http://boards.straightdope.com/sdmb/showpost.php?p=6745362&postcount=124). Nobody has any comments on his Doe vs. Groody opinion?

In another thread I pointed out that Alito's position here puts him way out of the mainstream. Most Americans are going to find this highly objectionable. As they should.

Gadarene

11-01-2005, 12:06 PM

It would be interesting to see someone who calls himself a textualist, but eschews originalism. Why would he adhere to the text if not to adhere to the original intent?

That's an easy one. By assigning to words their most reasonable contemporary meanings, you're 1) providing a built-in mechanism for the evolution of circumstances past the ken of the Framers, and 2) allowing the Constitution to remain comprehensible and accessible to the greatest number of people, both meaning that large scale Article V amendment is less often necessary.

Bruce Ackerman and Akhil Amar are both non-originalist textualists, in very different ways.

Bricker

11-01-2005, 12:12 PM

So in considering Alito for confirmation, objective qualifications are not enough?

You're mixing apples and '57 Chevy Bel Airs here.

I'm saying I'd like to see John Paul Stevens retire. I'm not saying he's unqualified. If I were a Senator and Stevens were proposed for the Court, I'd vote for him.

But if I were President, I'd never nominate him.

Fear Itself

11-01-2005, 01:07 PM

You're mixing apples and '57 Chevy Bel Airs here.Why? I'm just trying to get an idea of what you base your preferences for supreme court justices on. I don't see a great difference between criteria used for confirmation and criteria that leads you to want a justice to retire.

I'm saying I'd like to see John Paul Stevens retire. I'm not saying he's unqualified. If I were a Senator and Stevens were proposed for the Court, I'd vote for him.Based on your previous view of Steven's wisdom and judicial philosophy, I find this surprising. Why would you vote for a nominee that does not meet your criteria for a supreme court justice?

Bricker

11-01-2005, 01:58 PM

Why? I'm just trying to get an idea of what you base your preferences for supreme court justices on. I don't see a great difference between criteria used for confirmation and criteria that leads you to want a justice to retire.

Based on your previous view of Steven's wisdom and judicial philosophy, I find this surprising. Why would you vote for a nominee that does not meet your criteria for a supreme court justice?

Just because I think a particular school of interpretation is unwise has nothing to do with what I view as the role of the Senate being.

I may personally disagree with a nominee's approach, but if the nominee is qualified, I think it's my duty to vote to confirm. As a senator, I owe the President deference on his picks. He is the one that gets to choose the nominee.

I might well have voted against Ms. Miers - as I noted in another thread, her responses to the questionnaire were lacking in intellectual heft - but I'd have voted for Ginsburg, Stevens, Breyer, Souter, O'Connor, Kennedy, Scalia, and Thomas. And Rhenquist twice.

This despite the fact that I believe Stevens' and Ginsburg's approaches are unwise. But that's a matter of opinion. As a matter of objective determination, they are qualified. And selecting them for opinions about how wise their approaches are is the perogative of the President.

ElvisL1ves

11-01-2005, 02:05 PM

As a senator, I owe the President deference on his picks. He is the one that gets to choose the nominee.So you'd ignore the Constitution's requirement for you to advise as well as consent?

Dewey Cheatem Undhow

11-01-2005, 02:25 PM

Wickard v. Filburn, 317 US 111 (1942) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZS.html)
Bad, bad, awful example. In Wickard, the courts upheld a congressional act regulating the production of wheat, even where the wheat in question was grown for strictly personal use.

Wickard is a questionable case, and an example of overly-expansive commerce clause jurisprudence, but it is not an activist decision. The court was not replacing its own judgment for the judgment of the legislature. Indeed, if anything, Wickard is an example of too much judicial deference to the legislature.

A better example is, of course, Lochner, where the court did in fact use such judgment-substitution.

Bricker

11-01-2005, 02:38 PM

Bad, bad, awful example. In Wickard, the courts upheld a congressional act regulating the production of wheat, even where the wheat in question was grown for strictly personal use.

Wickard is a questionable case, and an example of overly-expansive commerce clause jurisprudence, but it is not an activist decision. The court was not replacing its own judgment for the judgment of the legislature. Indeed, if anything, Wickard is an example of too much judicial deference to the legislature.

A better example is, of course, Lochner, where the court did in fact use such judgment-substitution.

The question was: Otherwise, would you be so kind as to cite and link to an important case in which judges did whatever they pleased totally without regard to the written law?

I'll grant it was a bad example in that they did pay attention to one written law: Congress'. But they did so by totally ignoring the supreme law of the land, with which Congress' law clearly conflicted.

The court was elevating its judgement, and the judgement of the legislature, over the judgement of the super-legislature, if you will.

Dewey Cheatem Undhow

11-02-2005, 11:26 AM

I'll grant it was a bad example in that they did pay attention to one written law: Congress'. But they did so by totally ignoring the supreme law of the land, with which Congress' law clearly conflicted.How so? There is a commerce clause, after all, and it does in fact give to Congress the power to regulate interstate commerce. We can -- and should -- argue about the scope of what is or is not "interstate commerce," but you really can't say the court "ignored" the text of the constitution, or that the Congressional act "clearly" conflicted with anything.

Wickard may be wrongheaded from a commonsense point of view, but it is perfectly and eminently defensible as a matter of logic. And the "effects test" that leads inexorably to Wickard as its ultimate conclusion is far more consistent and sensible than the hodgepodge of ad hoc tests that previously existed.

Which is why, as I always say, the high court should get out of the commerce clause business entirely: the court should simply admit that the commerce power is effectively all power, and that what is or is not "interstate commerce" is simply a political question to be decided by the political branches. That, at least, would end the granting of judicial approval to acts like the one in Wickard, and require Congress to make some effort to justify its own actions rather than simply saying "that's a matter for the courts."

Gadarene

11-02-2005, 11:30 AM

Nice post, Dewey.

That, at least, would end the granting of judicial approval to acts like the one in Wickard, and require Congress to make some effort to justify its own actions rather than simply saying "that's a matter for the courts."

Isn't this akin to the jurisdictional hook required by the Court in Lopez and Morrison?

Dewey Cheatem Undhow

11-02-2005, 11:36 AM

Isn't this akin to the jurisdictional hook required by the Court in Lopez and Morrison?In a sense. I would just go one further and have the court cease review on commerce clause grounds entirely. That would prevent giving the patina of judical approval to truly twisted commerce clause rationales.

Gadarene

11-02-2005, 11:38 AM

I would just go one further and have the court cease review on commerce clause grounds entirely.

Then -- and this is the mirror image of Bricker's concerns, expressed elsewhere -- what would stop the legislative majority from passing all kinds of crazy laws?

cmkeller

11-02-2005, 11:48 AM

Gadarene:

Then -- and this is the mirror image of Bricker's concerns, expressed elsewhere -- what would stop the legislative majority from passing all kinds of crazy laws?

(raising hand) Ooh! Ooh! I know it, pick me!

What will stop legislators from passing crazy laws is a fear of not being re-elected.

Judges, being appointed for life, will never have that issue.

Bricker

11-02-2005, 11:50 AM

How so? There is a commerce clause, after all, and it does in fact give to Congress the power to regulate interstate commerce. We can -- and should -- argue about the scope of what is or is not "interstate commerce," but you really can't say the court "ignored" the text of the constitution, or that the Congressional act "clearly" conflicted with anything.

If the result of the Court's interpretation of the commerce clause is that Congress has unrestricted power to regulate any aspect of any behavior... then, yes, I can say that the court ignored the text.

A fair a reasonable reading of "regulate interstate commerce" does not end up being parsed as "regulate everything," especially when it's surrounded by other specific grants of power.

Gadarene

11-02-2005, 11:57 AM

cmkeller:

What will stop legislators from passing crazy laws is a fear of not being re-elected.

Judges, being appointed for life, will never have that issue.

Hey, I know the proper response to this one: Legislators are only concerned with the will of the voting plurality. Concern for re-election will not hinder them from passing laws targeted at -- and against -- political minorities. Besides, you checked out those incumbency rates lately?

Dewey Cheatem Undhow

11-02-2005, 11:59 AM

cmkeller for the win. That's exactly right. The solution to an overly expansive federal government is to vote the bums out.

Bricker, everyone loves to bitch about Wickard, but no one ever wants to devise a reasonable alternative test to the effects test.

The interstate commerce clause is effectively a massive oversight on the part of the founders: the power to regulate interstate commerce is effectively the power to regulate everything. We should admit to this simple truth, rather than continuing to deny its existence.

We see this happening in other countries: the economic compact that led to the EU has, over time, encroached on surprising areas of ostensibly noneconomic life in the EU's member countries.

Gadarene

11-02-2005, 12:05 PM

To follow up, let's take a variation of Lopez. Congress passes a law prohibiting the possession of firearms within one hundred yards of any school, playground, library, or "other public area likely to be frequented by children." If the courts have no power to review under the commerce clause, there is no constitutional basis for taking a look at the scope of this law. The group being targeted -- gun owners -- is, of course, not a suspect class under the Fourteenth Amendment. Any Tenth Amendment argument is extremely tenuous. And -- for the purposes of this hypothetical -- let's suppose that the congresspeople voting in favor of this law polled their constituencies and found more in favor of it than against. (The hypothetical poll question was "Do you favor legislation that will prevent children from being killed or injured by gun violence?", but that's neither here nor there.) You're saying -- and I guess I'll address this to Dewey -- that gun owners would have no recourse but to lobby Congress to change the law down the road or, alternatively, to try and sway public opinion on their own?

John Mace

11-02-2005, 12:12 PM

The interstate commerce clause is effectively a massive oversight on the part of the founders: the power to regulate interstate commerce is effectively the power to regulate everything. We should admit to this simple truth, rather than continuing to deny its existence.
I strongly disagree with that. The commerce clause, especially in the context of the much else in the constitution, is a limitation on the ability of the federal government to meddle in the internal affairs of the states. If the founders wanted it to be the power to regulate "everything", why include the term "interstate" at all? Clearly that word must mean something. It's not just some throw-away term, or one that can many different things to many different people (like "cruel and unusual").

Gadarene

11-02-2005, 12:17 PM

Do you agree, John, that interstate commerce is itself more expansive, pervasive, and wide-ranging than it was in the late 1780s?

Dewey Cheatem Undhow

11-02-2005, 12:38 PM

Hey, I know the proper response to this one: Legislators are only concerned with the will of the voting plurality. Concern for re-election will not hinder them from passing laws targeted at -- and against -- political minorities.I note that I'm only speaking of commerce clause jurisprudence here. Other constitutional proscriptions should, of course, be enforced by the judiciary.

As for your followup, and ignoring any (tenuous) second amendment objections in addition to the other constitutional provisions you list, then yes, that is the remedy: lobbying and public persuasion.

Besides, you checked out those incumbency rates lately?Something for which we have only ourselves to blame.

However, electorate uprisings can and do happen: see, e.g., the 1994 Congressional elections.

Dewey Cheatem Undhow

11-02-2005, 12:43 PM

I strongly disagree with that. The commerce clause, especially in the context of the much else in the constitution, is a limitation on the ability of the federal government to meddle in the internal affairs of the states. If the founders wanted it to be the power to regulate "everything", why include the term "interstate" at all? Clearly that word must mean something. It's not just some throw-away term, or one that can many different things to many different people (like "cruel and unusual").It's not a matter of making it a throwaway term or otherwise ignoring it; it's a matter of recognizing how pervasive interstate commerce is in our daily lives. That is a fact of life that cannot be ignored.

I think the founders were kidding themselves when they implied interstate and intrastate commerce can be meaningfully distinguished and then further separated from noneconomic life (as if there is such a thing). And even if such a thing was possible in 1787 -- a proposition for which I have severe doubts -- it is surely impossible in our modern, interconnected society.

Gadarene

11-02-2005, 12:44 PM

Something for which we have only ourselves to blame.

I guess that's what it boils down to. I'm less inclined to put thorough-going trust in the capacity of the voting plurality to be civic-minded and aware than are you or Professor Tushnet or Professor Ackerman.

My own view of the dynamic between the courts and the legislatures is essentially fatalistic and centripetal; I can expound on it if you want.

Evil Captor

11-02-2005, 12:45 PM

[QUOTE=Dewey Cheatem Undhow]Something for which we have only ourselves to blame.
[\QUOTE]

I think a fair amount of the blame can be parcelled out to our system of allowing incumbent politicians to draw electoral district maps, and of giving the party in power control over the electoral machinery, witness Tom DeLay's recent shenanigans in Texas. I'll also grant you that both parties engage in this sort of thing. Be nice if we could have the free and fair elections we encourage other nations to.

John Mace

11-02-2005, 12:56 PM

It's not a matter of making it a throwaway term or otherwise ignoring it; it's a matter of recognizing how pervasive interstate commerce is in our daily lives. That is a fact of life that cannot be ignored.

I think the founders were kidding themselves when they implied interstate and intrastate commerce can be meaningfully distinguished and then further separated from noneconomic life (as if there is such a thing). And even if such a thing was possible in 1787 -- a proposition for which I have severe doubts -- it is surely impossible in our modern, interconnected society.

Agreed-- there is no question that interstate commerce is much more complicated than it was in the late 1700s (not to Gaderene: I agree with your post).

However, it isn't so expansive that limits can't still be placed on federal authority. Supposing I set up a fence painting company that opperates only within one state. How does the federal gov't justify imposing a minimum wage requirement on my company? I am painting fences, and those fences aren't being "exported" across state lines. Now, if I expanding my business to painting the boards to be used in fence construction, and those boards were exported across state lines, there could be a case made. But all I have is a little fence painting company.

Dewey Cheatem Undhow

11-02-2005, 01:03 PM

Gadarene

11-02-2005, 01:04 PM

Agreed-- there is no question that interstate commerce is much more complicated than it was in the late 1700s.

So -- and this is a sincere question -- how does a textualist/originalist go about determining what "interstate commerce" means in the context of contemporary circumstances and contemporary legislation?

John Mace

11-02-2005, 01:59 PM

Where do you get your paint and brushes and overalls?

More seriously, I still haven't heard the one thing that is really needed in this sphere: a test for meaningfully distinguishing between interstate and intrastate commerce. Individual fact patters are nifty and all, but what's the test?

How about this (and, again, this is in response to Gaderene): That the actual product in question, the good or service being provided by the company, does not cross state lines.

Too simple?

Alternatively, were there federal laws struck down in the early days of the Republic because they were overly broad wrt to the commerce clause? Do those SCOTUS rulings shed some light on a way of thinking about limits on federal powers?

Gadarene

11-02-2005, 02:18 PM

How about this (and, again, this is in response to Gaderene): That the actual product in question, the good or service being provided by the company, does not cross state lines.

That wasn't actually a response to my question. :) What's inherently textualist or originalist about your test?

John Mace

11-02-2005, 02:24 PM

That wasn't actually a response to my question. :) What's inherently textualist or originalist about your test?

Why not? Interstate means going across state lines, does it not?

Gadarene

11-02-2005, 02:36 PM

Why not? Interstate means going across state lines, does it not?

Yes. Whence do you infer the "actual product in question" portion of your test from text and original intent?

John Mace

11-02-2005, 02:56 PM

Yes. Whence do you infer the "actual product in question" portion of your test from text and original intent?
Because if you don't limit it to the "actual product in question", you get to the point where we are today-- where the word "interstate" might as well not even be there. I start with the assumption that the word is there for a purpose. If you're defenition of that word renders the word meaningless, then your definition is no good.

It's only when you start asking the painter if he bought his paint brushes in another state that you get to where everything can be regulated. Because then you ask him, well if you didn't buy them in another state, maybe the bristles came from another state. Or, you say that the market for paintbrushes makes brushes made in his home state indistinguishable from out of state bushes.

But I'm open to other definitions, as long those definitions don't logically make the word have no restraint on federal authority.