# McCain-Feingold upheld **URL:** \ **Category:** Great Debates\ **Created:** [December 10, 2003, 5:41pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175 "2003-12-10T17:41:06Z")\ **Posts on this page:** 19\ **Page:** 7
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 14, 2003, 7:12pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/121 "2003-12-14T19:12:33Z")
Boy, we’re gonna have to get right down to fundamentalism here. OK. I hold that the highest purpose of the Constitution is to provide a framework for a governance of, by, and for the people. Pursuant to this goal, every effort is to be made to ensure political egalitarianism. Any effort to advance that idea is _inherently_ Constitutional, by definition. If supporting text is at hand, so much the better. ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 14, 2003, 7:33pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/122 "2003-12-14T19:33:57Z")
> [@](#): > > \*Originally posted by elucidator \* > I hold that the highest purpose of the Constitution is to provide a framework for a governance of, by, and for the people. Pursuant to this goal, every effort is to be made to ensure political egalitarianism. Any effort to advance that idea is _inherently_ Constitutional, by definition. What definition would that be, and where can it be found in the Constitution? If, as I suspect, it cannot be, why should it be accepted as an underlying principle, especially considering the decidely UNegalitarian nature of our bicameral legislature and electoral college, for instance? ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 14, 2003, 7:38pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/123 "2003-12-14T19:38:27Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*Boy, we’re gonna have to get right down to fundamentalism here. OK. > \*\* If there is any area in which fundamentalism is justified, it is constitutional law. Otherwise we have a de facto dictatorship by those who would interpret it to suit their whim, in which case THEY are the “supreme law of the land”, not the Constitution. We will be governed either by laws or by men. What’s it gonna be? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 14, 2003, 8:03pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/124 "2003-12-14T20:03:29Z")
_Baaaap!_ Fallacy of excluded middle. Unacceptable. Mebst. ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 14, 2003, 8:28pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/125 "2003-12-14T20:28:40Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*_Baaaap!_ Fallacy of excluded middle. Unacceptable. Mebst. \*\* Any fool can find an apparent logical anomaly and slap a high-falutin’ term of derision on it. If you think we can simultaneously have a government of laws and a government of men (i.e., men who view themselves as above the law rather than subject to it), show me how. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 14, 2003, 8:55pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/126 "2003-12-14T20:55:50Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*Boy, we’re gonna have to get right down to fundamentalism here. OK. \*\* Comparing a belief in general fidelity to the text of the Constitution with religious fundamentalism is simply profane. Shame on you. I have never – not here, not in other threads, never – suggested that Constitutional provisions did not require interpretation. Clearly, they do. A literalist interpretation of the equal protection clause, for example, would invalidate pretty much every single law ever written, because the law depends on classification and differing treatment based on that classification. Not even the most strident of strict constructionist hewes to the kind of literalism embraced by the religious fundamentalist. \*\* > [@](#): > > I hold that the highest purpose of the Constitution is to provide a framework for a governance of, by, and for the people. Pursuant to this goal, every effort is to be made to ensure political egalitarianism. Any effort to advance that idea is _inherently_ Constitutional, by definition. If supporting text is at hand, so much the better. \*\* This is simply Not The Way It Works ™. The constitution was not brought down on stone tablets off of a mountain by men speaking to flaming shrubbery. Constitutional interpretation is not an exercise in spiritual englightenment. It’s the task of interpreting the text of a particular document, and nothing more. When a court says something is unconstitutional, it is saying it violates some particular provision of that document, and nothing more. Even the most liberal of constitutional scholars recognize this, which is why you have remarkable elasticity given to the due process clause and series of provisions in the Bill of Rights allegedly emanating a penumbra. No jurist or scholar suggests, as you do, that the text of the constitution is unimportant, mere “gravy” when it can support a given preconcieved outcome. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 14, 2003, 9:39pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/127 "2003-12-14T21:39:26Z")
> [@](#): > > \*Originally posted by yguy \* > **Any fool can find an apparent logical anomaly and slap a high-falutin’ term of derision on it.** Nothin’ “high-falutin’” about it, its simply means that you posit that there are _only_ two possibilities. Ain’t so. > [@](#): > > \*\*If you think we can simultaneously have a government of laws and a government of men (i.e., men who view themselves as above the law rather than subject to it), show me how. \*\* You mean something like a sitting President is directly enjoined by the Congress from funding a foreign revolutionary movement, i.e. Reagan? Or a sitting President refusing a lawful order from the Supreme Court, a la Andy Jackson? It has happened, has it not? And has the Republic collapsed? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 14, 2003, 9:51pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/128 "2003-12-14T21:51:00Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > **Comparing a belief in general fidelity to the text of the Constitution with religious fundamentalism is simply profane. Shame on you…** Oh, piffle. I had said no such thing, and you are not nearly dumb enough to believe that I did. Your rhetorical device is beneath you, sir. ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 14, 2003, 10:25pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/129 "2003-12-14T22:25:03Z")
> [@](#): > > \*Originally posted by elucidator \* > You mean something like a sitting President is directly enjoined by the Congress from funding a foreign revolutionary movement, i.e. Reagan? I won’t debate whether Reagan acted illegally in that case, but if he did, the action of Congress was, at least in theory, an instance of law doing the governning rather than the President. > [@](#): > > Or a sitting President refusing a lawful order from the Supreme Court, a la Andy Jackson? Not familiar with that one, so I can’t comment. > [@](#): > > It has happened, has it not? And has the Republic collapsed? It _is_ collapsing, in case you hadn’t noticed. We have SCOTUS citing international law in violation of the supremacy clause in Lawrence v. Texas, and Judge Myron Thompson excercising legislative powers in the Roy Moore case, among other things. Next thing you know we’ll be providing special courts for the enforcement of sharia law in the Muslim community as Canada is doing - under the aegis of what’s left of the first amendment, no doubt. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 14, 2003, 10:43pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/130 "2003-12-14T22:43:39Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*Oh, piffle. I had said no such thing, and you are not nearly dumb enough to believe that I did. Your rhetorical device is beneath you, sir. \*\* And yours beneath you, sir. I know an attempt to tar with the fundie brush when I see one. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 14, 2003, 10:57pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/131 "2003-12-14T22:57:59Z")
> [@](#): > > \*Originally posted by yguy \* > \*\*We have SCOTUS citing international law in violation of the supremacy clause … \*\* I’m as strict a constructionist as you’ll find on these boards, and this bit has become one of the more absurd shibboleths of conservatives. I wish they’d stop, because it’s a stupid point. Judges have been citing to other jurisdictions as _persuasive authority_ since time immemorial. No judge or justice of which I’m aware has cited to international law as _controlling authority_. And therein lies a tremendous difference. The former is simply saying “this is an issue we haven’t addressed before; let’s look at how other jurisdictions have handled it and see if we find their reasoning persuasive.” The ultimate judgment still lies with the judge. The latter means “we have to rule a certain way because we are bound to do so by _stare decisis_.” The judge lacks discretion. It would indeed be troubling if courts had been doing the latter. But they haven’t – they’ve confined themselves to the former. I could point you to any number of cases where a state supreme court, hearing a question of first impression, has looked to the decisions of sister states for guidance. Sometimes they follow what other states have done, sometimes they don’t – it’s just that, guidance, and nothing more. What the court is doing in these cases is no different. ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 14, 2003, 11:17pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/132 "2003-12-14T23:17:13Z")
Dewey, I understand your point, but I don’t believe the difference is as clear cut as you think, especially in a case like Lawrence, where they were, it seems to me, _looking_ for a reason to ignore the tenth amendment. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [December 14, 2003, 11:32pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/133 "2003-12-14T23:32:57Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*And yours beneath you, sir. I know an attempt to tar with the fundie brush when I see one. \*\* Thrice piffle and a fie, as well. A simple reading will suffice: I state going to fundamentalism, and then state _my_ fundamentalism: political egalitarianism. Prying that statement entirely out of the political context in which it was lodged, you transmorgify it to an insult and charge the insult to me. Bandicoots, sir! Tommyrot! ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 15, 2003, 12:13am UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/134 "2003-12-15T00:13:26Z")
> [@](#): > > \*Originally posted by yguy \* > \*\*Dewey, I understand your point, but I don’t believe the difference is as clear cut as you think, especially in a case like Lawrence, where they were, it seems to me, _looking_ for a reason to ignore the tenth amendment. \*\* No, it’s _exactly_ as clear-cut as that. The ultimate judgment lies with the court. That they found persuasive arguments used by other courts in other jurisdictions does not change that salient fact. I am highly critical of the _Lawrence_ decision, but the “we shouldn’t look to what other courts have said” argument is not part of that criticism. Looking to the decisions of other courts is simply part of good jurisprudence. There is nothing inherently wrong with doing so. **’luce** : Sure. Whatever you say. :rolleyes: ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 15, 2003, 12:33am UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/135 "2003-12-15T00:33:43Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Looking to the decisions of other courts is simply part of good jurisprudence. There is nothing inherently wrong with doing so. > \*\* Agreed, but just why did they need any guidance from other courts in Lawrence? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 15, 2003, 1:04am UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/136 "2003-12-15T01:04:12Z")
Because as a practical matter, every case before the Supreme Court is one of first impression: unlike lower courts, they are not absolutely bound by precedent (though they ascribe a great deal of importance to prior decisions, and follow those decisions far more often than they overrule them). While I agree that the due process rationale the _Lawrence_ court settled on should fail on pure _stare decisis_ grounds due to _Bowers v. Hardwick_. But having decided to overturn _Bowers_, the high court is obliged to craft a new constitutional rule, and in doing so they may look to the decisions of other courts for guidance. As long as they aren’t considering the decisions of those other courts to be _binding_, then they are just engaging in normal jurisprudential activity. And, of course, the equal protection argument in _Lawrence_ raised an issue of first impression for the court. ---
**Author:** ![yguy](https://avatars.discourse-cdn.com/v4/letter/y/eb9ed0/32.png) [@yguy](https://boards.straightdope.com/u/yguy)\ **Post date:** [December 15, 2003, 2:19am UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/137 "2003-12-15T02:19:23Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > While I agree that the due process rationale the _Lawrence_ court settled on should fail on pure _stare decisis_ grounds due to _Bowers v. Hardwick_. But having decided to overturn _Bowers_, the high court is obliged to craft a new constitutional rule, What is a “constitutional rule”? > [@](#): > > and in doing so they may look to the decisions of other courts for guidance. In this case, it seems they were seeking in international law what couldn’t be found in the Constitution. > [@](#): > > As long as they aren’t considering the decisions of those other courts to be _binding_, then they are just engaging in normal jurisprudential activity. What difference does it make that they don’t openly declare such decisions binding, when THEIR decision, which seems to me to rely heavily on them as a means of undermining _Bowers_, is as binding as any decision can be? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [December 15, 2003, 5:45pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/138 "2003-12-15T17:45:40Z")
> [@](#): > > \*Originally posted by yguy \* > \*\*What is a “constitutional rule”? \*\* A means of interpreting a particular provision of the constitution. For example, a government-imposed distinction based on race must be narrowly tailored to meet a compelling state interest. That’s the constitutional rule used to interpret the equal protection clause in matters of race. \*\* > [@](#): > > In this case, it seems they were seeking in international law what couldn’t be found in the Constitution. \*\* The _Lawrence_ court did hang their hat on a constitutional phrase: due process. Now I agree that that phrase has been stretched beyond all recognition, and its infinite malleability does a disservice to good constitutional jurisprudence, but that’s quite another argument. \*\* > [@](#): > > What difference does it make that they don’t openly declare such decisions binding, when THEIR decision, which seems to me to rely heavily on them as a means of undermining _Bowers_, is as binding as any decision can be? \*\* Well, that’s the point: it’s the Court’s ultimate decision, and no one else’s. They aren’t looking to international law as binding, they’re only looking to it as persuasive authority. But the ultimate decision lays with the Court. Now as it happens, I think _Lawrence_ was wrongly decided on several grounds. But the decision was still the high court’s, and did not turn on some past decision of an international tribunal. There is much to criticize about _Lawrence_, but the citation to international law is not one of them. ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [December 19, 2003, 9:06pm UTC](https://boards.straightdope.com/t/mccain-feingold-upheld/218175/139 "2003-12-19T21:06:29Z")
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