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  1.  (438.241)
    Most of my legal knowledge comes second hand through my ConLaw addict girlfriend, but from what I can tell you're spot on with that post. Well said.


    Thanks, the words here are mine, but the idea was instilled in me by this man while I was in law school, and the argument itself is his. Prof. Wiseman, who I still consider a friend, would fit right in with community actually.
    • CommentAuthorKosmopolit
    • CommentTimeJan 30th 2008
     (438.242)
    "Likely it would be someone not yet on the stage, maybe someone slightly youthful, to counter worries about McCain's age."

    Well if John really wants to shake things up:

    http://en.wikipedia.org/wiki/Bobby_Jindal

    Piyush "Bobby" Jindal (born June 10, 1971) is a Republican politician, and the current governor of the U.S. state of Louisiana.[1] Before his election as governor, he was a member of the United States House of Representatives from Louisiana's 1st congressional district, where he was elected in 2004 to succeed current U.S. Senator David Vitter. Jindal was re-elected to Congress in the 2006 election with 88 percent of the vote. On October 20, 2007, he was elected the first non-white governor of Louisiana since Reconstruction, the first elected Indian-American governor in U.S. history, as well as the second Asian American governor to serve.


    •  
      CommentAuthorScribe
    • CommentTimeJan 30th 2008
     (438.243)
    Another one down. CNN is now reporting that John Edwards will be dropping out of the 2008 Democratic primary race. He's expected to make comments later today.
    •  
      CommentAuthorpico
    • CommentTimeJan 30th 2008
     (438.244)
    Sorry Lyons, haven't been near the interwebs. Very well reasoned argument, but I still disagree.

    The main disagreement that we have is that you think the Court invented the right of privacy in Griswold, whereas I think the Framers made it an inherent part of the Constitution. The first amendment protects freedoms left and right from that of the press to expressoin, the fifth protects from self-incrimination, the fourth from unreasonable search and seizure, even the third from quartering soldiers in a private home without the owner's consent. No one can deny that a right to privacy lives in these passages. And while it is never expressly written in the document, it is such a vital part of almost half of the amendments that to say it doesn't exist is not being completely forthcoming. Everything else that you and I are contesting stems from that one thing.

    While I will admit that my arguments are less than ironclad, they still have merits. There is no right answer, though JTraub's ConLaw professor does boil it down rather well. Even Scalia and Roberts are using their accumulated knowledge and opionions when it comes to deciding cases. I'm not saying it's a bad thing to do (I'd be more comfused if they didn't use their judgment), and I'm definitely not saying that I agree with them. But to say that they aren't putting their own interpretation of the Constitution into their decisions is being intellectually dishonest. Again, it comes to the fact that the Founders and Framers had the same intelligence but less accumulated knowledge than we have.

    As for the election, there is absolutely no way that anyone in the GOP wants to get in McCain's way now that he finally has regained the shot at the white house that was viciously stolen from him in 2000. The Democrats' best chance of beating him is Obama, but I don't think that HRC will be willing to just sit down and shut up unless her husband tells her to, and even then all she has to say is "cigar, dear?" and he'll become the lapdog again. Part of me still doesn't believe that the GOP will give McCain the nomination; he's the Maverick. His running mate would probably be Rudy. If they do completely lose their minds and nominate Gov. "Bobby" Jindal, then they forfeit all ability to smear Obama as a dark-skinned terrorist, which the GOP is licking its chops to be able to do.
    •  
      CommentAuthorSJD
    • CommentTimeJan 30th 2008
     (438.245)
    That will be interesting. I thought Edwards would stick it out hoping Barrack or Clinton would foul up in some unrecoverable way that he could slide in and be a contender.

    As the field gets narrower though, I have this nagging problem in the back of my mind that I really don't know enough about policies for these little Democrats and Republicans besides Barrack wants a safe, smart way out of Iraq, Clinton says she wants out but has that lying gleam in her eye, and McCain wants to fight for another 100 years well into the inevitable Zombie Apocalypse.

    The more they talk the less is revealed, besides the verbal smackdowns.

    I propose new teams. Let's get some last minute trades or pull some from the minor leagues.

    The current talent aren't blowing up my skirt very much. You know, if I wore on.

    I like Barrack but I like watching watching Britney Spears in her prime on Youtube and that doesn't mean she's not a freaky mess, if you catch my drift.

    I want to lock them in a room and give them all the good cop/bad cop routine under a spotlight until they cry like their on Oprah.

    What do you all think?

    -SJD
    • CommentAuthorLyons
    • CommentTimeJan 30th 2008 edited
     (438.246)
    JTraub:

    There is no a single fair interpretation of any given clause in the Constitution, rather there is a range in which we try to place our findings.


    No disagreement from me.

    That fact those interpretations, might in part, change overtime is inherent in the notion. We can only look with the eyes we have now and the knowledge we have now upon he document.


    Serious disagreement, in that, while, yes, the meanings of words do change over time, the fact is that at the time at which a particular constitutional provision was ratified the words used most likely had a different range of meanings than they do today. To use the meanings of today to read the words of yesterday subverts the political project/deal that was struck by the political actors at the time a particular provision was adopted, and invites the judiciary to remake those political understandings as they, the judges desire. Indeed, freezing the meaning of the Constitution is one of the main reasons that the colonists/founders went with a written constitution, rather than sticking with a customary constitution like the English constitution: the early national generation wanted the legal meanings of their political values to be frozen (open, of course, to being amended). That's also why amending the Constitution was made so difficult: they expected that the values they were putting in writing would be the values signified by the meanings at that time of the signifiers they used.

    As a for instance, when you get down to it, Bush's arguments that he gets extra-special powers to ignore Congress because of the war on generalized anxiety is exactly the argument of a "living Constitution": the proper understanding of the limits of executive power change with the times. I don't see how one can argue on a principled basis that Bush's argument--if accepted by the Supreme Court--is somehow invalid, when you have conceded at the very least that the meaning of the words of the Constitution ought to be read as having changed over time.

    Putting ourselves into the minds of the framers is not possible and in fact not desirable as such ahistorical acts are no different from any other attempt at interpretation.


    This misstates the originalist project: it is not an effort at transtemporal mindreading. Rather, it is in large measure a matter of linguistic history, that asks what the reasonable range of meanings of the text were at the time the text was adopted as binding law.

    Those that claim to read clear and unambiguous notions from the document mistake their own choice within the range for the only possible interpretation.


    The idea that the text is "clear and unambiguous" is not an originalist claim at all. Rather, originalists simply claim that the possible range of meaning has to be discerned through the study of history.
    • CommentAuthorLyons
    • CommentTimeJan 30th 2008 edited
     (438.247)
    The main disagreement that we have is that you think the Court invented the right of privacy in Griswold, whereas I think the Framers made it an inherent part of the Constitution. The first amendment protects freedoms left and right from that of the press to expressoin, the fifth protects from self-incrimination, the fourth from unreasonable search and seizure, even the third from quartering soldiers in a private home without the owner's consent. No one can deny that a right to privacy lives in these passages. And while it is never expressly written in the document, it is such a vital part of almost half of the amendments that to say it doesn't exist is not being completely forthcoming.


    There are certain privacy interests that are protected in the Constitution, sure, but the idea that was accepted in Griswold was that the privacy right is so expansive that it swallows the 9th and 10th amendments. As a matter of legal and historical interpretation, that's pretty flawed: the federal Constitution, through the 14th amendment, only limits particular things the states can do to people--like no forced confessions or unreasonabole searches and seizures. It does not, however, create some privacy generalized right that precludes the regulation of, say, commercial transactions in contraceptives.

    Indeed, considering that issues like self-incrimination, jury trial, search and seizure, free exercise of religion, speech, and assembly--all crucial and well-respected rights in the Anglo-American legal tradition--were mentioned expressly in the Constitution, it strikes me that you would have to explain how this general "privacy," understood as the states and their citizens not being able to regulate transactions in "personal" goods was so fundamental that it failed to be mentioned in the federal Constitution.
    •  
      CommentAuthorpico
    • CommentTimeJan 30th 2008
     (438.248)
    The Constitution is meant to be a timeless document, the framework of our republic. I disagree with W's interpretation of it for several reasons (not the least of which being I don't think he's ever read it and if he did he wouldn't have the number of brain cells necessary to initerpret the multisyllabic words), but mainly because through his reading, the President has power to do as he damn pleases without effective checks and balances.

    I still haven't heard an argument against the tenth amendment. If a right isn't specifically enumerated in the constitution, it is retained by the people. It's something, as I said before, the new state of Georgia fought for at the Constitutional Convention. Privacy falls under that umbrella. And if you want to get into the history of it all, the old school Liberal (now basically Libertarian) ideologies that helped shape the Constitution wanted the government to defend the nation and stay out of the way of commerce and the private lives of the citizenry. So transactions in, as you say, "personal" goods wouldn't be mentioned in the document because said transactions are not the business of the federal government. Our papers and effects are protected, our right to expression is protected, the sanctity of our home is protected, and our personal property is protected. How does this not effectively declare a right to privacy? Simply because the words "right to privacy" aren't written in the document? If the government has an interest in violating the privacy of a citizen, it needs to show interest and probable cause.
    •  
      CommentAuthorRik Sunn
    • CommentTimeJan 30th 2008
     (438.249)
    Voter suppression is NOT an extreme way of looking at what has happened in the last decade in this country. Check out Greg Palast's "Armed Madhouse" or the upcoming "Steal Back Your Vote" comic for some specifics on this.

    Yes, I am a whore.
  2.  (438.250)
    Edwards has dropped, and both remaining candidates are pushing hard for his support. It looks like Rudy is going to drop and throw is weight to McCain.
    •  
      CommentAuthorRik Sunn
    • CommentTimeJan 30th 2008
     (438.251)
    That's just what I expected to happen after Florida. If Edwards or Rudy have any brains, they'll shut up and sit out a few months. Once there's a presumptive, they could throw their support behind that person and almost certainly at least one of them would get a VP nod. If they back the wrong horse at this early stage in the game, it could keep that from happening.
  3.  (438.252)
    Rik,

    Rudy has just endorsed McCain. And rumor now says big Arnie will be doing so shortly. The fix is in I think.
    • CommentAuthorLyons
    • CommentTimeJan 30th 2008 edited
     (438.253)
    I'm not sure how much of a "fix" is in: I think there are a lot of people in the party establishment, both financial and ideological, who hate McCain's guts. I think, however, that a lot of the elected officials coming in behind McCain see him as their best bet at the party making gains this year and of seeing the party become more capable in actually, you know, addressing policy problems like campaign funding, the environment, and health care, and not acting as a gang of right-wing thugs in the model of Gingrich, Norquist, and Limbaugh. I think a McCain presidency, in a Nixon goes to China kind of way, will advance all three of those areas of policy concern in ways that any self-described progressive should find pleasing.
    • CommentAuthorLyons
    • CommentTimeJan 30th 2008 edited
     (438.254)
    @pico:

    I'll get back to you on your arguments tomorrow: there are some key matters I think you're missing, but I am bushed tonight and want to recharge before I see my honey later.

    Peace
  4.  (438.255)
    I'm not sure how much of a "fix" is in: I think there are a lot of people in the party establishment, both financial and ideological, who hate McCain's guts


    Yeah I was a bit too glib. I do not mean fix in a conspiratorial way. I am well aware of the hatred the republican money machine has for him. And yup, the evangelicals hate him too. However, I think this is a sign that the right agreements are being made to fall in behind him. Very curious if he will take a religious right candidate for VP. I do not want him as president, I want Clinton or Obama, I make no bones about that, but I can accept McCain as president - if that makes sense.
    • CommentAuthorKosmopolit
    • CommentTimeJan 30th 2008
     (438.256)
    On the subject of payback for endorsements, could we be looking at Justice Giuliani if McCain is elected?
    • CommentAuthorLyons
    • CommentTimeJan 30th 2008 edited
     (438.257)
    Yeah I was a bit too glib. I do not mean fix in a conspiratorial way. I am well aware of the hatred the republican money machine has for him. And yup, the evangelicals hate him too. However, I think this is a sign that the right agreements are being made to fall in behind him. Very curious if he will take a religious right candidate for VP. I do not want him as president, I want Clinton or Obama, I make no bones about that, but I can accept McCain as president - if that makes sense.


    It does, although rank-and-file evangelicals actually seem to have come around on McCain: I seem to recall seeing polling that has shown him getting a fair amount of their support. The ideological types to whom I was referring were the Club for Growth assholes.

    As for McCain's running-mate, I think he only needs to even consider a social conservative if Obama gets the Democratic nod, which I don't think he will. If Hillary's the Democratic nominee that'll be all McCain will need to get the evangleical base out.
    • CommentAuthorLyons
    • CommentTimeJan 30th 2008
     (438.258)
    On the subject of payback for endorsements, could we be looking at Justice Giuliani if McCain is elected?


    No chance in hell: the Federalist Society guys would go nuts, and there's too much dirt on the guy. Look for the 10th Circuit's Michael McConnell as McCain's first nominee if McCain gets the big chair: McConnell's a principled originalist who has made originalist arguments in favor of the constitutionality of affirmative action and has publicly criticized the majority decision in Bush v. Gore.
  5.  (438.259)
    I think McCain pretty much has the race in hand, barring his murder of a puppy during the debate tonight or something. Romney just doesn't have a base of support anywhere. That and he seems to inspire almost instant dislike among pretty much everyone. In trying to please everyone he seems to have pissed off everybody.

    Justice Guiliani? That sends a shiver down the spine, but I could see it. The fact that he didn't surrender New York to Osama Bin Ladin and beg for mercy on 9/11 has obscured his atrocious brutality record and rather zealous disregard for due process to many people. Remember "It's Guiliani Time!"? He might get the nomination, but a democractic senate/house could break out the long knives during his confirmation. America's Mayor could go the Bork route.

    All the horse-trading up to the convention is going to be very interesting. Where Huckabee ends up, if anywhere, is going to be very interesting to watch.

    Edwards withdraw was just odd. I would have bet he'd stay in until at least Ultra-Tuesday. If for nothing better than to have some delegates to play with come the convention. I think he's making deals with both camps so that the convention is a coronation, not brokered.
  6.  (438.260)
    Attorney General Giuliani, however, is well within the realm of horrifying possibility.

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