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When I mentioned that my friend said that he doesn't see himself as black, I didn't mean as like a super-Uncle Tom thing. I meant as like, he wouldn't have been able to marry his wife or even have his own career if everyone else adhered to his strict beliefs that no law should have been changed since the times where he would have been classified as sub-human just by the color of his skin. I guess others have pointed that out already though.
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Jun 23, 2020 18:30
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VitalSigns posted:Thank you for this post. I believe you got it exactly in your earlier post. He doesn't believe in stare decisis at all. The reason why pre-ratification precedent counts is that he doesn't see it as precedent, to him its effectively law because the people (in his view) agreed to be bound by that precedent. Anything judges come up with later can be changed if they are wrong, even if we have a century of cases built on top of that ancient decision, and reversing it would cause a massive amount of legal chaos. If the people had some kind of 2nd constitutional convention where they got together and among other things also agreed to be bound by current precedent, Thomas would then likely sign off on that as well, because its not precedent to him anymore, now its law.
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Jun 23, 2020 18:46
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I wonder what the oldest bit of common law he’s used is.
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Jun 23, 2020 18:49
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hobbesmaster posted:I wonder what the oldest bit of common law he’s used is. Probably something in an admiralty case because it is almost exclusively common law. Admiralty is one of the few areas of real common law that has never been taken over by statute other than to expand workers rights here and there with the jones act and such. Admiralty cases will cite poo poo older than most current nations. e: or that vvvvvv
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Jun 23, 2020 19:00
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hobbesmaster posted:I wonder what the oldest bit of common law he’s used is. probably from around 1066
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Jun 23, 2020 19:00
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EwokEntourage posted:probably from around 1066 Which he essentially does in the very dissent that started this discussion.
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Jun 23, 2020 19:04
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I enjoyed Scalia's dipshit decision in Heller having to go back to English law because he had to ignore both what the language of the amendment meant when it was written and ignore the debate around the drafting of the amendment.
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Jun 23, 2020 19:05
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Rigel posted:I believe you got it exactly in your earlier post. He doesn't believe in stare decisis at all. The reason why pre-ratification precedent counts is that he doesn't see it as precedent, to him its effectively law because the people (in his view) agreed to be bound by that precedent. Is this discussed anywhere because two objections immediately come to mind. First, the constitution never actually says anywhere that we're adopting all common law precedent, the courts were just doing that anyway. You could argue that this was implied by the fact that the courts were just doing that anyway and the constitution didn't change it so that's a form of popular consent, but those same courts were the ones establishing new precedents so why can't we say there was the same implied popular consent to be bound by that? Second, precedent is part of common law, so if the people consented to a common law system in 1787 didn't they also consent to the system of precedent and interpretation that's a part of that system. (Well I guess there's a third objection about what it means to say that a constitution adopted only by landowning white men was ever popularly consented to, but that's a criticism of originalism generally, not specifically of his reasoning that courts should still be applying elizabethan era rulings ) VitalSigns fucked around with this message at 19:25 on Jun 23, 2020 |
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Jun 23, 2020 19:23
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jeeves posted:When I mentioned that my friend said that he doesn't see himself as black, I didn't mean as like a super-Uncle Tom thing. he doesn't believe that no laws should ever be changed, he believes that the decision to change the laws should be made "by the people", either through their elected representatives in congress or through constitutional convention. The only time he believes judges should strike down laws is if they're in conflict with the constitution and he pretty obviously would vote to strike down anti-miscegenation laws because he really does believe those violate the fourteenth amendment (although I'm sure if such a case came up he would write a concurrence about how all civil rights precedent needs to be thrown out and replaced with reasoning based on the privileges and immunities clause)
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Jun 23, 2020 19:32
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VitalSigns posted:Is this discussed anywhere because two objections immediately come to mind. Your objections appear to be to originalism generally. There has been much written about this and you might want to take a look at Scalia’s “Originalism: The Lesser Evil” article: https://web.archive.org/web/20060221174707/http://www.joink.com/homes/users/ninoville/lesserevil.asp#864 I suspect you will find few people here in this thread willing to spend any energy defending originalism, though.
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Jun 23, 2020 19:33
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Originalism is indefensible because even its practitioners don't follow it. Heller's one of the more obvious examples. It's conservatives wanting to give their opinions a seemingly objective veneer.
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Jun 23, 2020 19:35
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ulmont posted:Your objections appear to be to originalism generally. There has been much written about this and you might want to take a look at Scalia’s “Originalism: The Lesser Evil” article: https://web.archive.org/web/20060221174707/http://www.joink.com/homes/users/ninoville/lesserevil.asp#864 Yeah I know it's not popular here I was just wondering what the arguments for it are, thanks for the link E: oh wow this speech already going places  Justice Scalia posted:Taft is generally acknowledged to have been one of the greatest Chief Justices -- not so much on the basis of his opinions, perhaps because many of them ran counter to the ultimate sweep of history. One commentator observes condescendingly: VitalSigns fucked around with this message at 19:44 on Jun 23, 2020 |
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Jun 23, 2020 19:38
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Thomas and Gorsuch are honest to god ideologues, it's just that said ideals line up with mainstream conservative ideology nine times out of ten. Meanwhile Alito and  are indefensibly just GOP toadies who will gleefully twist the law any which way to satisfy their fascist masters. Roberts feels closer to the latter than the former, and I think if he wasn't chief justice he'd be almost indistinguishable from Alito but his weird obsession with the legacy of his court as non-partisan means he has a lot of rulings where he sides with the liberals on weird technicalities that let him write incredibly narrow decisions that end up with 4+ concurrence-in-part-and-dissent-in-part's.
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Jun 23, 2020 19:46
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VitalSigns posted:Yeah I know it's not popular here I was just wondering what the arguments for it are, thanks for the link The most basic argument is: If the meaning of the Constitution changes over time, that means judges are legislating from the bench. Therefore there must be one meaning of the Constitution. What meaning is that? Presumptively the one the founders understood of the words they wrote down.
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Jun 23, 2020 19:58
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VitalSigns posted:Is this discussed anywhere because two objections immediately come to mind. The adoption of the common law at the state level has less to do with the US Constitution than with state statutes and constitutions: https://en.wikipedia.org/wiki/Reception_statute#United_States There's no federal reception statute I'm aware of (but see the Northwest Ordinance of 1787). But the Constitution does mention the common law in the Seventh Amendment, in addition to a lot of provisions that implicitly import common law concepts.
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Jun 23, 2020 20:06
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Sydin posted:Thomas and Gorsuch are honest to god ideologues, it's just that said ideals line up with mainstream conservative ideology nine times out of ten. Meanwhile Alito and Hypothetically, if Roberts assigned himself a 6-3 decision and the other 5 all signed on to the same concurrence-in-part-dissent-in-part, how would that be treated in terms of precedence? Like if he writes one of those incredibly narrow interpretations but a real majority say "no, it's more widely applicable" does it get applied narrowly or widely as a precedent? This may be a weird question and I hope I'm asking it in a way that makes sense.
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Jun 23, 2020 20:06
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ulmont posted:The most basic argument is: Technically, most originalists now would speak of "original public meaning" rather than the intent of the founders themselves.
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Jun 23, 2020 20:07
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Silver2195 posted:Technically, most originalists now would speak of "original public meaning" rather than the intent of the founders themselves. That’s what I was referencing - the “original public meaning” is what the founders (and, yes, the general public at the time) understood the words they wrote down to mean.
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Jun 23, 2020 20:14
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it's a tragedy that anyone comes to believe or act on ideas of "deontological justice," where what's right is finding and following The Rules, but that tragedy becomes enormous when they're elevated to any position of power.
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Jun 23, 2020 20:17
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Silver2195 posted:Technically, most originalists now would speak of "original public meaning" rather than the intent of the founders themselves. Which is still kinda bullshit, because society and the world have changed a lot since the constitution was signed. So you have a second amendment which originally meant "you can have a flintlock we guess" * and then people twist themselves into pretzels to argue that the founders meant "here have an assault rifle". * Yes I know that what the 2nd exactly means is still debated I'm just using it as an example.
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Jun 23, 2020 20:18
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Mikl posted:Which is still kinda bullshit, because society and the world have changed a lot since the constitution was signed. constitutionally unbannable and unregulated privatized nuke ownership edit: https://news.vice.com/en_us/article/ywn7jk/this-test-could-redefine-what-weapons-are-protected-by-the-second-amendment Vice posted:Maryland’s ban, enacted in 2013 soon after the Sandy Hook Elementary School massacre, was allowed to stand in a 10-4 decision by the 4th Circuit Court of Appeals in Richmond, Virginia, that ruled the Second Amendment does not protect what the judges called “exceptionally lethal weapons of war.” all of it seems arbitrary to me, not being a lawyer galenanorth fucked around with this message at 20:26 on Jun 23, 2020 |
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Jun 23, 2020 20:21
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ulmont posted:The most basic argument is: Yeah I get that, I don't get how the chancery court of England figures into it. What were those English judges doing when they decided what's an equitable remedy if not legislating from the bench. And this case has nothing to do with originalism or constitutional interpretation. It was a question over the meaning of a statute. If we're supposed to evaluate statutes by figuring out what the authors of that statute intended when they said "equitable remedy" why would they be thinking of an 18th century chancery court, wouldn't a 20th century congress writing a 20th century statute be meaning to invoke contemporary 20th century interpretations of "equitable remedy", not secretly thinking of what it meant to a dude who ('s servants) threw his poop out the window into the street? (Well I'm wading into the decision now, so I think the answer to this second question is "that's why the decision was 8-1, dummy") VitalSigns fucked around with this message at 20:36 on Jun 23, 2020 |
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Jun 23, 2020 20:31
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Mikl posted:Which is still kinda bullshit, because society and the world have changed a lot since the constitution was signed. Yeah, obviously a lot depends on the level of abstraction you apply here. I think pretty much everyone is an originalist at the level of which dictionary to use, but the more you start applying the specific implicit assumptions of the 18th century (or, for the 14th Amendment, the 19th century), the more originalism breaks down. The most obvious problem with originalism is this: even Thomas thinks the outcome of Brown v. Board of Education was correct, although he would take issue with much of its reasoning. But the same Congress that passed the 14th Amendment ran a segregated school system in the District of Columbia.
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Jun 23, 2020 20:31
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The interpretation of the 2nd Amendment Scalia agreed with was pretty much invented in the 1970s so that tells you how much originalists actually care about original intent.
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Jun 23, 2020 20:32
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Silver2195 posted:The adoption of the common law at the state level has less to do with the US Constitution than with state statutes and constitutions: https://en.wikipedia.org/wiki/Reception_statute#United_States Ah ok I think this link answers my question, thank you. quote:For example, the New York Constitution of 1777[4] provides that: I guess the argument is that this was indeed the intent, and also by implication the founders intended the federal government to be set up the same way?
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Jun 23, 2020 20:35
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Lemniscate Blue posted:Hypothetically, if Roberts assigned himself a 6-3 decision and the other 5 all signed on to the same concurrence-in-part-dissent-in-part, how would that be treated in terms of precedence? Like if he writes one of those incredibly narrow interpretations but a real majority say "no, it's more widely applicable" does it get applied narrowly or widely as a precedent? The way I understand it, only the parts that command a majority are precedent. So if Roberts' narrow opinion is a subset of the other four justices' broad opinion, then you had five votes for the narrow stuff and four votes for the broad stuff so the narrow stuff only becomes precedent. If the other four didn't agree with part of Roberts' narrow opinion either then the precedent would be even more narrow because only the parts everyone agreed on would be precedent. If the concurring opinions were completely incompatible with each other and the only thing they had in common was the outcome, a situation that I'm 95% sure has come up before, then it's just a goddamn mess and there is no precedent, and lower courts can't take any rule from that other than "if you see the exact same set of facts again, order this outcome"
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Jun 23, 2020 20:41
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galenanorth posted:constitutionally unbannable and unregulated privatized nuke ownership There's a long tradition of viewing weapons which require more than one person to function efficiently (artillery pieces would've been the obvious example when the Bill of Rights was drafted) as "ordnance", not "arms" and thus more open to restriction than handguns, rifles, and the like.
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Jun 23, 2020 20:56
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Lemniscate Blue posted:Hypothetically, if Roberts assigned himself a 6-3 decision and the other 5 all signed on to the same concurrence-in-part-dissent-in-part, how would that be treated in terms of precedence? Like if he writes one of those incredibly narrow interpretations but a real majority say "no, it's more widely applicable" does it get applied narrowly or widely as a precedent? Just to add on to VitalSigns who pretty much explained a narrow 5-4: You asked about a 6-3 where Roberts tried to assign himself the opinion. The other 5 can still go "lol gently caress your opinion, we'll write a broader opinion", then the broadest opinion that got 5 votes controls. The Chief Justice does get the privilege of assigning himself the majority opinion, but he still has to hang onto the votes of 4 other judges. If he can't do that, then he is no longer writing the majority opinion. A Chief Justice who decides to play the game has to figure out exactly where the line is where if he writes it any narrower he loses the 5th vote, and stay just within that line. If the supreme court ever announces a "concurrence" that gets 5 votes, then its not really a concurrence; it actually controls. Because of that, to make things less confusing if the original opinion writer loses the majority, then the other opinion is called the majority, and his narrow opinion gets relegated to a mere concurrence. Rigel fucked around with this message at 21:04 on Jun 23, 2020 |
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Jun 23, 2020 20:58
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Is the a requirement on ruling assignment being dolled out relatively evenly or is that just etiquette? Like in a hypothetical situation where you have eight justices who all just cannot loving stand the ninth, could they refuse forever to allow that justice to write a ruling?
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Jun 23, 2020 21:03
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Sydin posted:Is the a requirement on ruling assignment being dolled out relatively evenly or is that just etiquette? Like in a hypothetical situation where you have eight justices who all just cannot loving stand the ninth, could they refuse forever to allow that justice to write a ruling? Its a workload issue. There's no hard and fast rule, but the supreme court gets a crapton of unanimous "lol, the appeals court was obviously wrong" slapdowns, so its easy to spread out the work. So, Thomas tends to get a lot of those unanimous and near-unanimous opinions since his crazy opinions can't hold a majority for anything that is remotely controversial or complex. He then punishes his clerks with an endless stream of concurrences/dissents, so we get a weird Thomas opinion on a ton of cases.
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Jun 23, 2020 21:07
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Sydin posted:Is the a requirement on ruling assignment being dolled out relatively evenly or is that just etiquette? Like in a hypothetical situation where you have eight justices who all just cannot loving stand the ninth, could they refuse forever to allow that justice to write a ruling? The most senior judge in the majority gets to decide who writes it (so usually Roberts, but if he's in the minority whoever's most senior gets to.) They can assign it to whoever they want to, so that situation could indeed theoretically happen.
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Jun 23, 2020 21:12
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That makes sense, thanks to both of you. If that happened, and then the Chief Justice said "whoopsie!" and rewrote the opinion to one they could concur with, would the public ever know?
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Jun 23, 2020 21:13
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Thanks, that's interesting. So Thomas is the closest we have to that hypothetical judge everybody thinks is a weirdo and doesn't want anywhere near most cases. Lemniscate Blue posted:That makes sense, thanks to both of you. Probably not, my guess is there's a lot of politicking behind the scenes in SCOTUS. It definitely feels like Roberts jumped on the Title VII majority because he knew Gorusch was going to vote with the liberals and wanted to make sure he could assign the ruling to him.
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Jun 23, 2020 21:16
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Lemniscate Blue posted:That makes sense, thanks to both of you. Usually not. Almost nothing ever leaks from the SCOTUS. From what we understand, whoever is originally assigned the majority opinion by the CJ or the most senior judge in the majority is only ever promised a chance at writing it, and there's a lot of back and forth as the opinion is written. If they can't hold the majority, then someone else ends up with it.
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Jun 23, 2020 21:18
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Sydin posted:Is the a requirement on ruling assignment being dolled out relatively evenly or is that just etiquette? Like in a hypothetical situation where you have eight justices who all just cannot loving stand the ninth, could they refuse forever to allow that justice to write a ruling? I can't find any information on this, but I feel like if it was ever going to happen it would be the Hughes Court and James McReynolds.
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Jun 23, 2020 21:30
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hobbesmaster posted:I wonder what the oldest bit of common law he’s used is. Whoever upthread quoted Hammurabi. 
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Jun 23, 2020 22:54
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Vincent Van Goatse posted:There's a long tradition of viewing weapons which require more than one person to function efficiently (artillery pieces would've been the obvious example when the Bill of Rights was drafted) as "ordnance", not "arms" and thus more open to restriction than handguns, rifles, and the like. Was there any distinction on ownership of ordnance vs arms then? I recall a argument that people were obviously allowed to operate merchantmen armed with cannon. Though I guess that would become a precedent argument then.
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Jun 23, 2020 23:21
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AlexanderCA posted:I recall a argument that people were obviously allowed to operate merchantmen armed with cannon. Was that a constitutional right, or just something congress allowed/didn't ban by statute
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Jun 23, 2020 23:22
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Thats my question yeah, did they consider them arms? Did they intend to include future weapons? Now I imagine sovcits operating ships of the line.
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Jun 23, 2020 23:39
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AlexanderCA posted:Thats my question yeah, did they consider them arms? Did they intend to include future weapons? At least it would solve the problem of mass shootings. https://www.youtube.com/watch?v=8CDtSHAmoFg
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Jun 24, 2020 01:06
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