2051
Science, Culture, & Humanities / Re: Education
« on: December 30, 2010, 07:13:23 AM »
GM, I am not sure why you are asking me that question based on the article I posted.
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2052
Science, Culture, & Humanities / Re: Education
« on: December 30, 2010, 05:09:40 AM »
http://www.indypendent.org/2010/09/09/education-rediscovered/
Education Rediscovered
The reasons why public education is suddenly an issue despite years of neglect by politicians and the media are straightforward. In this depressed economy credentials seem to have lost their advantage. Many parents and politicians claim schools have failed to deliver what students need. There is a widespread perception that illiteracy is rising, meaning, for one, that fewer people can read complex texts. And the results of No Child Left Behind with its draconian high-stakes standardized testing have been disappointing, to say the least.
Mainstream educators and commentators warn that the United States, once a leader among advanced capitalist societies in graduation rates, has fallen to 12th place and is still tumbling. Many are concerned that education has become a national security issue. Others point out that the engines of the global economy are math and science and this country is turning out fewer trained physicists, chemists, biologists, mathematicians and computer scientists.
Some trumpet as solutions the usual neoliberal bromides — charter schools and for-profit private schools at all education levels. But, according to numerous studies, these schools rarely live up to the hype. Others have rejected the long American experiment with progressive education, in which students are the subjects of schooling, not just its object. In the 1980s, school authorities decided that kids needed more discipline, more time in school and more homework. The latest brilliant policy concept is to reward or punish teachers for their students’ performance.
Teachers unions have soundly rejected this particular “solution,” calling it a blatant attack on teacher professionalism and living standards. In a time of severe cuts in school funding, however, many locals of both major national teacher unions have meekly accepted layoffs, increased class sizes and performance criteria. Above all, neither the unions nor educational authorities have offered serious alternatives to the conservative-led drive toward neoliberal privatization. And the left seems content to roll out the usual proposals: more money for schools, wider access for poor and working-class students of color to higher education and an end to privatization.
While these reforms are necessary, they are hardly sufficient. The right wants to keep kids’ noses to the grindstone by testing them into submission, hand off schools to the for-profit sector and throw unworthy, disruptive kids out of school or at least relegate them to “special education,” the only thriving sector in K–12.
Most liberals lack a similarly direct and powerful program. They may praise the centrality of critical thinking, a legacy of the progressive era, but they mainly offer band-aids. That’s because liberals have accepted the dominant framework that education, or more accurately, schooling should serve the economy by training students to take their respective places in the world of work.
Not true. What radicals should offer handwringing liberals is what radicals do best: go to the root of things. Education should be a preparation for life, especially helping kids become active in determining the conditions that most affect them.
........ (there is more in the link)
Education Rediscovered
The reasons why public education is suddenly an issue despite years of neglect by politicians and the media are straightforward. In this depressed economy credentials seem to have lost their advantage. Many parents and politicians claim schools have failed to deliver what students need. There is a widespread perception that illiteracy is rising, meaning, for one, that fewer people can read complex texts. And the results of No Child Left Behind with its draconian high-stakes standardized testing have been disappointing, to say the least.
Mainstream educators and commentators warn that the United States, once a leader among advanced capitalist societies in graduation rates, has fallen to 12th place and is still tumbling. Many are concerned that education has become a national security issue. Others point out that the engines of the global economy are math and science and this country is turning out fewer trained physicists, chemists, biologists, mathematicians and computer scientists.
Some trumpet as solutions the usual neoliberal bromides — charter schools and for-profit private schools at all education levels. But, according to numerous studies, these schools rarely live up to the hype. Others have rejected the long American experiment with progressive education, in which students are the subjects of schooling, not just its object. In the 1980s, school authorities decided that kids needed more discipline, more time in school and more homework. The latest brilliant policy concept is to reward or punish teachers for their students’ performance.
Teachers unions have soundly rejected this particular “solution,” calling it a blatant attack on teacher professionalism and living standards. In a time of severe cuts in school funding, however, many locals of both major national teacher unions have meekly accepted layoffs, increased class sizes and performance criteria. Above all, neither the unions nor educational authorities have offered serious alternatives to the conservative-led drive toward neoliberal privatization. And the left seems content to roll out the usual proposals: more money for schools, wider access for poor and working-class students of color to higher education and an end to privatization.
While these reforms are necessary, they are hardly sufficient. The right wants to keep kids’ noses to the grindstone by testing them into submission, hand off schools to the for-profit sector and throw unworthy, disruptive kids out of school or at least relegate them to “special education,” the only thriving sector in K–12.
Most liberals lack a similarly direct and powerful program. They may praise the centrality of critical thinking, a legacy of the progressive era, but they mainly offer band-aids. That’s because liberals have accepted the dominant framework that education, or more accurately, schooling should serve the economy by training students to take their respective places in the world of work.
Not true. What radicals should offer handwringing liberals is what radicals do best: go to the root of things. Education should be a preparation for life, especially helping kids become active in determining the conditions that most affect them.
........ (there is more in the link)
2053
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: December 30, 2010, 04:56:45 AM »
http://www.prospect.org/cs/articles?article=humanoid_rights
Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties
A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.
As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."
The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.
Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties
A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.
As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."
The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.
2054
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: December 21, 2010, 04:13:18 AM »
Sandy Levinson is an extremely influential constitutional scholar. Some of his more interesting work deals with what he calls "constitutional stupidities." Here is one of his articles:
http://digitalarchive.gsu.edu/cgi/viewcontent.cgi?article=3252&context=colpub_review
http://digitalarchive.gsu.edu/cgi/viewcontent.cgi?article=3252&context=colpub_review
2055
Science, Culture, & Humanities / Re: Legal issues
« on: December 17, 2010, 07:31:12 AM »
http://online.wsj.com/article/SB10001424052748703493504576007774155273928.html?mod=djem_jiewr_BL_domainid
Assembling the Global Baby
By TAMARA AUDI and ARLENE CHANG
In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.
She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.
The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.
Assembling the Global Baby
By TAMARA AUDI and ARLENE CHANG
In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.
She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.
The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.
2056
Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism
« on: December 16, 2010, 12:05:02 PM »
http://news.yahoo.com/s/afp/italyusciaegyptcrimeappeal
Italian court increases sentences for 23 CIA agents
ROME (AFP) – An Italian court upped the sentences for 23 CIA agents convicted in absentia of abducting an Egyptian imam in one of the biggest cases against the US "extraordinary rendition" programme.
The 23 CIA agents, originally sentenced in November 2009 to five to eight years in prison, had their sentences increased to seven to nine years on appeal in what one of the defence lawyers described as a "shocking blow" for the US.
Italian court increases sentences for 23 CIA agents
ROME (AFP) – An Italian court upped the sentences for 23 CIA agents convicted in absentia of abducting an Egyptian imam in one of the biggest cases against the US "extraordinary rendition" programme.
The 23 CIA agents, originally sentenced in November 2009 to five to eight years in prison, had their sentences increased to seven to nine years on appeal in what one of the defence lawyers described as a "shocking blow" for the US.
2057
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: December 16, 2010, 03:18:19 AM »
"Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy." From DougMacG, in a different thread
There has been a recent fascination with Justice Kennedy, no doubt spurred by Justice SDO retiring in 2006. Her retirement left Kennedy as the "swing" justice. As a result of this, there has been a fair amount of research done by political scientists, journalists, and law professor types. Most of them conclude that Kennedy is not as unpredicatable as is popularly understood.
Some examples:
Linda Greenhouse's "Is the 'Kennedy Court' Over?" which can be found here: http://opinionator.blogs.nytimes.com/2010/07/15/rethinking-the-kennedy-court/
Frank Colucci's Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty reviewed here: http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/colucci0110.htm
Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty reviewed here:
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/knowles0509.htm
Vol. 19 No. 5 (May, 2009) pp.347-350
THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY, by Helen J. Knowles. Lanham, Maryland: Rowman & Littlefield, 2009. 312pp. Hardback. $44.95/£30.00/€44.50. ISBN: 9780742562578.
Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College. Tgibson [at] monm.edu.
With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat. There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor. However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard. Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court. Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.
Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2). Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making. Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).
In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book). Following the definition, the challenge is to see Kennedy’s application of libertarianism. Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility. More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.
The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.” Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53). This is an important belief for Kennedy and can be seen throughout his defense of speech. Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989). The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991). Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary. Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69). Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens.
In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics. Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter. She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom. At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation. Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110). Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116). His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial boundaries” (p.121). [*349]
In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual. Here, the focus turns to race. The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses. Kennedy dissented from the majority opinion which upheld these preferences in support of diversity. Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan. Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions. He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137). Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.
The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter. Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163). Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.” This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.
The conclusion serves to reiterate the points made in the prior chapters. Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views. For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions. Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”
In THE TIE GOES TO FREEDOM, Knowles utilizes several sources. The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench. Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given. Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters. Although the chapters [*350] facially are unique, there are clear connections through the book. Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.
This book serves an important purpose. While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come. Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court. This book is one of the more interesting and well written books that I have read in recent years.
CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).
KOREMATSU v. US, 323 U.S. 214 (1944).
LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
ROMER v. EVANS, 517 U.S. 620 (1996).
SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).
TEXAS v. JOHNSON, 491 U.S. 397 (1989).
*********************
© Copyright 2009 by the author, Tobias T. Gibson.
There has been a recent fascination with Justice Kennedy, no doubt spurred by Justice SDO retiring in 2006. Her retirement left Kennedy as the "swing" justice. As a result of this, there has been a fair amount of research done by political scientists, journalists, and law professor types. Most of them conclude that Kennedy is not as unpredicatable as is popularly understood.
Some examples:
Linda Greenhouse's "Is the 'Kennedy Court' Over?" which can be found here: http://opinionator.blogs.nytimes.com/2010/07/15/rethinking-the-kennedy-court/
Frank Colucci's Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty reviewed here: http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/colucci0110.htm
Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty reviewed here:
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/knowles0509.htm
Vol. 19 No. 5 (May, 2009) pp.347-350
THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY, by Helen J. Knowles. Lanham, Maryland: Rowman & Littlefield, 2009. 312pp. Hardback. $44.95/£30.00/€44.50. ISBN: 9780742562578.
Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College. Tgibson [at] monm.edu.
With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat. There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor. However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard. Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court. Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.
Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2). Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making. Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).
In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book). Following the definition, the challenge is to see Kennedy’s application of libertarianism. Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility. More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.
The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.” Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53). This is an important belief for Kennedy and can be seen throughout his defense of speech. Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989). The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991). Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary. Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69). Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens.
In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics. Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter. She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom. At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation. Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110). Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116). His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial boundaries” (p.121). [*349]
In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual. Here, the focus turns to race. The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses. Kennedy dissented from the majority opinion which upheld these preferences in support of diversity. Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan. Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions. He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137). Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.
The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter. Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163). Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.” This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.
The conclusion serves to reiterate the points made in the prior chapters. Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views. For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions. Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”
In THE TIE GOES TO FREEDOM, Knowles utilizes several sources. The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench. Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given. Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters. Although the chapters [*350] facially are unique, there are clear connections through the book. Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.
This book serves an important purpose. While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come. Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court. This book is one of the more interesting and well written books that I have read in recent years.
CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).
KOREMATSU v. US, 323 U.S. 214 (1944).
LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
ROMER v. EVANS, 517 U.S. 620 (1996).
SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).
TEXAS v. JOHNSON, 491 U.S. 397 (1989).
*********************
© Copyright 2009 by the author, Tobias T. Gibson.
2058
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: December 16, 2010, 03:01:39 AM »
Health Suits Stir Concerns on Court Partisanship
http://www.nytimes.com/2010/12/16/health/policy/16health.html?_r=2&src=twt&twt=nytimes
Representative Pete Stark, a California Democrat who leads the Ways and Means subcommittee on health, added, “Apparently Republicans are now for judicial activism after they were against it.”
http://www.nytimes.com/2010/12/16/health/policy/16health.html?_r=2&src=twt&twt=nytimes
Representative Pete Stark, a California Democrat who leads the Ways and Means subcommittee on health, added, “Apparently Republicans are now for judicial activism after they were against it.”
2059
Politics & Religion / Re: The Politics of Health Care
« on: December 13, 2010, 11:40:28 AM »
A copy of the memo opinion from Judge Hudson:
http://www.vaag.com/PRESS_RELEASES/Cuccinelli/Health%20Care%20Memorandum%20Opinion.pdf
http://www.vaag.com/PRESS_RELEASES/Cuccinelli/Health%20Care%20Memorandum%20Opinion.pdf
2060
Science, Culture, & Humanities / Re: Legal issues
« on: December 09, 2010, 07:40:20 AM »
Despite being recommened to me by a social scientist (and we know how those people can be), here is an interesting blog related to the states legal challenges to the Health Care Bill.
http://acalitigationblog.blogspot.com/
http://acalitigationblog.blogspot.com/
2061
Science, Culture, & Humanities / Re: Humor/WTF
« on: December 02, 2010, 07:34:34 PM »
This is the "appropriate" thread for this. I am 99.99% sure this is fake.
http://www.deadseriousnews.com/?p=573
A 47 year old gay man was arrested at San Francisco International Airport after ejaculating while being patted down by a male TSA agent. Percy Cummings, an interior designer from San Francisco, is being held without bail after the alleged incident, charged with sexually assaulting a Federal agent.
According to Cummings’ partner, Sergio Armani, Cummings has “multiple piercings on his manhood” which were detected during a full body scan. As a result, Cummings was pulled aside for a pat-down. Armani stated that the unidentified TSA agent spent “an inordinate amount of time groping” Cummings, who had apparently become sexually aroused. Cummings, who has a history of sexual dysfunction, ejaculated while the TSA agent’s hand was feeling the piercings. The TSA agent, according to several witnesses, promptly called for back up. Cummings was thrown to the ground and handcuffed.
A TSA spokesperson declined to comment on this specific case, but said that anyone ejaculating during a pat-down would be subject to arrest.
http://www.deadseriousnews.com/?p=573
A 47 year old gay man was arrested at San Francisco International Airport after ejaculating while being patted down by a male TSA agent. Percy Cummings, an interior designer from San Francisco, is being held without bail after the alleged incident, charged with sexually assaulting a Federal agent.
According to Cummings’ partner, Sergio Armani, Cummings has “multiple piercings on his manhood” which were detected during a full body scan. As a result, Cummings was pulled aside for a pat-down. Armani stated that the unidentified TSA agent spent “an inordinate amount of time groping” Cummings, who had apparently become sexually aroused. Cummings, who has a history of sexual dysfunction, ejaculated while the TSA agent’s hand was feeling the piercings. The TSA agent, according to several witnesses, promptly called for back up. Cummings was thrown to the ground and handcuffed.
A TSA spokesperson declined to comment on this specific case, but said that anyone ejaculating during a pat-down would be subject to arrest.
2062
Science, Culture, & Humanities / Re: Legal issues
« on: December 02, 2010, 11:03:26 AM »The question of elected and unelected judges is very interesting, and more complicated than that sounds. For example, the Iowa vote was a form of impeachment by the voters. The new justices will still be appointed and confirmed by the state executive and legislative branches respectively (as I understand it). Urban legend here in Minnesota is that the best judges were picked by the wholly unqualified independent governor, Jesse the wrestler, because he did not have a pool of partisan, party, political paybacks to attend to and was able to select based only on merit. That being the exception rather the rule indicates that the ordinary process of appointment-confirmation is less than perfect and objective also.
The Des Moines register contemplates the question of how the ousters will affect the pool of potential new justices. http://www.desmoinesregister.com/article/20101120/NEWS/11200334/How-will-ousters-affect-pool-of-justice-applicants- My feeling is that of course it has an effect but the experience of being ousted puts you in private practice with increased pay and the credential of being a former supreme court justice. That is not all bad, so it seems to me that a good justice will still do what is right in their mind and not necessarily cling to power like a typical Washington politician.
The full faith and credit clause pointed out by bigdog is what makes these policy questions settled by such small numbers of people so huge in implication.
Regarding Stevens, thank you bigdog for conceding point 3) to me. (smiles!) For some reason I never see that point acknowledged in death penalty discussions. Important context of point 3) is that Stevens prefaced his 5 points with this: "To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses." I will settle for one out of five and rest my case.
Clarifying my point on elitism, I only intended it as a negative when judging the benefits of the general public as per Stevens point 4). I certainly value choosing the finest minds and highest character for the people who will review the technical arguments of constitutional and case law for interpretation, though I often disagree with them.
Unequal application is a concern. I hadn't seen the argument before regarding elected/unelected judges. I see it made over black vs. white convicts and don't know what to make of it. What I see in the neighborhoods is how unfair it is that black people are disproportionately crime victims in black neighborhoods, not that the guilty are pursued or punished too harshly.
You are a thoughtful chap, DougMacG. Please note that only mostly conceded the point to you, and raised another potential issue. I agree with you on the importance of the Full Faith and Credit clause. Illinois has OK'd civil unions, in the legislature. Interesting, given our current train of discussion.
There is certainly no perfect method of judicial selection. There are issues that one can find in any selection process. I think it is a good thing that we have 51 (or more, really) judicial systems within the United States. It allows the states to be more mindful of the needs of their residents. And, yes, I just made a (pseudo) states rights argument. I do like the states as "laboratories of democracy."
2063
Science, Culture, & Humanities / Re: Legal issues
« on: December 02, 2010, 10:56:19 AM »GM,
Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.
Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.
Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.
I agree. But that means that the State of Nature is a construct. It was used by philosophers to construct the need for the constructed social contract.
2064
Science, Culture, & Humanities / Re: Legal issues
« on: December 02, 2010, 04:36:28 AM »
All of that said, the chimp article is really interesting. Thank you for sharing it.
2065
Science, Culture, & Humanities / Re: Legal issues
« on: December 02, 2010, 04:35:29 AM »
GM,
Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.
Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.
2066
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 07:28:27 PM »
All of your examples are societies with social contracts taking advantage of those outside of their own social contract. I was not singling out the US slave history. i was using it as an example. You still haven't illustrated this horrible state of nature you claim is the basis of human interaction without government.
2067
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 06:52:17 PM »
"Sadistic torture for enemy captives" does not undercut the idea of a peaceful state of nature (at least not as a stand alone example). This happens within a social contract also. See, for example, early American history. Slaves were born outside of a social contract, had no chance of entering the social contact, and were still abused. That did not make the early United States a state of nature.
2068
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 02:57:29 PM »The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.
Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.
My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.
Cute. One difference is that gravity is viewed through the same lens. Bodies with more mass have larger gravity, etc. There are, in contrast, several different conceptions of the social contract. While Hobbes's created view of the state of nature is one in which people's fates are terrible, this need not be the case (see Locke). And, how the SON is viewed plays a major role in the desired and expected powers and actions of the government which is set up to end the state of nature.
2069
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 08:31:44 AM »My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".
But the social contract is a creation of philosophers. You sound like a Hobbesian, given what seems to be your view of the state of nature. Once in the social contract, according to Hobbes, the ruler (prefered to be a strong, centralized monarch) has nearly total control of the process of goverance. Is this something that you desire, so that we do not revert to the state of nature, in which, of course, man's experience is solitary, poor, nasty, brutish and short?
2070
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 08:26:12 AM »Glad to have BD with us.
"when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."
The inference being that electing judges is to blame? Can we not equally say that unelected judges abusing the power which is in their hands to insert their own opinions are the unconstitutional ones?
Thank you, sir. As I said, I believe this is one of the points that Justice Stevens is making in his book review, yes. And your second point is one that can, indeed, be made. As I mentioned there is a great deal of debate about the selection process of judges currently. Again, I recommend the Bonneau and Hall book mentioned above.
2071
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 04:28:43 AM »
I think this is exactly Justice Stevens' point. For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional.
Your view of the social contract is incomplete. First, there are many ideas about the genesis and structure of the social contract, what binds members to society, and the like. Hobbes, Locke, Rousseau, and more recently John Rawles have very different views on the composition of the social contract. Some might argue that the family and friends of the victim cede the state's criminal justice power period, with no guarantee that the family or friends are satisfied with the "tangible" justice the state decides on. And, that could benefit death penaly proponents. If the family of a murder victim did not want the death penalty, it is still within the descretion of the prosecutor and judge to seek and sentence the death penalty. There is no reason that the state would seek the family's preferences on this.
Your view of the social contract is incomplete. First, there are many ideas about the genesis and structure of the social contract, what binds members to society, and the like. Hobbes, Locke, Rousseau, and more recently John Rawles have very different views on the composition of the social contract. Some might argue that the family and friends of the victim cede the state's criminal justice power period, with no guarantee that the family or friends are satisfied with the "tangible" justice the state decides on. And, that could benefit death penaly proponents. If the family of a murder victim did not want the death penalty, it is still within the descretion of the prosecutor and judge to seek and sentence the death penalty. There is no reason that the state would seek the family's preferences on this.
The 5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**
2072
Science, Culture, & Humanities / Re: Legal issues
« on: December 01, 2010, 04:20:10 AM »
Thank you, DougMacG for your kind words. Before I discuss your points, and GM's excellent offerings, I want to say that the reason that I posted the JPS piece was not because I agree with his points, but because I thought it worthy of discussion. A book review by a former USSC justice is noteworthy, in my opinion.
That said, I AM opposed to the death penalty, so the essay worked nicely, in my opinion. To your points 1-5:
1. Your formulation is merely a rewording of JPS original view, placing the murdered individual or individuals' family, etc. as victims. I disagree with this. To discuss a different crime: I am negatively impacted by shoplifting (higher prices, etc.) but to say I am victim doesn't give the store owner his due. Can I, or should I, file a class action suit against every shoplifter because I am impacted? Of course not. The store merchandise is the target, and the store owner is the victim. Likewise, the "Butterfly Effect" should not be understood to begin beyond the murdered. It creates a question for which there can be no answer: who is the victim of a crime?.
2. It depends on your view of justice. In the trailer for the new movie "Faster" there is a scene where some lady yells "I hope you kill them all." This action is meant to be compensatory. While this is a movie, there are plenty of people who have this feeling in American society. But there many views of justice (see http://faculty.cua.edu/hoffmann/courses/201_1068/Plato-3%20Views%20on%20justice.pdf for a discussion of some of these).
3. I will concede point 3, at least mostly. There are certainly instances where the threat of the death penalty can be a service to the law enforcement community. However, there are those who fear that the death penalty threat also leads people to confess to crimes they did not committ in an effort to avoid being put to death.
4. As a martial artist, I am sure you are familiar with the difference between feeling secure and being secure. Does that make you an elitist? It also relates to different forms of representation. For example, should a member of Congress merely represent his consituents, or should he represent the best interest of the country, even if that means that his smaller constituency is effected negatively, at least in the short term?
5. That is a digression, yes.
My (admittedly hypothetical) view: let's say there is a gang member who done gang member things, which likely include murder, but who "sees the light" for whatever reason, and decides to make amends. He dedicates his life to ending gang violence, and several local youth say that his actions prevented them for joining a gang and participating in gang activities, likely including murder. Is this not redemption, or at the very least an effort to rectify his prior nuisance?
That said, I AM opposed to the death penalty, so the essay worked nicely, in my opinion. To your points 1-5:
1. Your formulation is merely a rewording of JPS original view, placing the murdered individual or individuals' family, etc. as victims. I disagree with this. To discuss a different crime: I am negatively impacted by shoplifting (higher prices, etc.) but to say I am victim doesn't give the store owner his due. Can I, or should I, file a class action suit against every shoplifter because I am impacted? Of course not. The store merchandise is the target, and the store owner is the victim. Likewise, the "Butterfly Effect" should not be understood to begin beyond the murdered. It creates a question for which there can be no answer: who is the victim of a crime?.
2. It depends on your view of justice. In the trailer for the new movie "Faster" there is a scene where some lady yells "I hope you kill them all." This action is meant to be compensatory. While this is a movie, there are plenty of people who have this feeling in American society. But there many views of justice (see http://faculty.cua.edu/hoffmann/courses/201_1068/Plato-3%20Views%20on%20justice.pdf for a discussion of some of these).
3. I will concede point 3, at least mostly. There are certainly instances where the threat of the death penalty can be a service to the law enforcement community. However, there are those who fear that the death penalty threat also leads people to confess to crimes they did not committ in an effort to avoid being put to death.
4. As a martial artist, I am sure you are familiar with the difference between feeling secure and being secure. Does that make you an elitist? It also relates to different forms of representation. For example, should a member of Congress merely represent his consituents, or should he represent the best interest of the country, even if that means that his smaller constituency is effected negatively, at least in the short term?
5. That is a digression, yes.
My (admittedly hypothetical) view: let's say there is a gang member who done gang member things, which likely include murder, but who "sees the light" for whatever reason, and decides to make amends. He dedicates his life to ending gang violence, and several local youth say that his actions prevented them for joining a gang and participating in gang activities, likely including murder. Is this not redemption, or at the very least an effort to rectify his prior nuisance?
2073
Science, Culture, & Humanities / Re: Gay marriage decision in Iowa has consequences for judges
« on: December 01, 2010, 03:51:27 AM »
Your post opens a great many questions. There is a fair amount of discussion about the judicial selection process at the state level these days. Justice O'Connor has been speaking on this subject for years, with a view that elected judges, by definition, are not independent and therefore cannot make unbiased type of decisions. In contrast, several people including Chris Bonneau and Melinda Gann Hall, in a book aptly called "In Defense of Judicial Elections," support the idea of an elected judiciary. It is a hot topic at the moment.
To your other point, it should be noted that there are those who feel as though same sex marriages allowed in one state should be recognized in the other states in the union. This is because of the Full Faith and credit clause in Article IV of the Constitution which states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
To your other point, it should be noted that there are those who feel as though same sex marriages allowed in one state should be recognized in the other states in the union. This is because of the Full Faith and credit clause in Article IV of the Constitution which states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
New rights and more rights, that sounds good. A state court finding a new right of free health care would be an example?
How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said:
"We hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution."
- http://www.slideshare.net/LegalDocs/findlaw-iowa-gay-marriage-decision
Iowa voters oust justices who made same-sex marriage legal
http://www.cnn.com/2010/POLITICS/11/03/iowa.judges/index.html
2074
Science, Culture, & Humanities / Re: Legal issues
« on: November 29, 2010, 01:33:48 PM »
On the Death Sentence
December 23, 2010
John Paul Stevens
http://www.nybooks.com/articles/archives/2010/dec/23/death-sentence/?pagination=false
December 23, 2010
John Paul Stevens
http://www.nybooks.com/articles/archives/2010/dec/23/death-sentence/?pagination=false
2075
Science, Culture, & Humanities / Re: Legal issues
« on: November 28, 2010, 05:10:43 PM »
The idea is that if the state courts rely on the state constitution, rather than the U.S. Constitution, the SC would take a hands off approach to reviewing the decision. It was new in 1985, in Michigan v. Long (the Court's opinion for which SDO authored), because of the prior courts decisions of the 1950's-1970's.
2076
Science, Culture, & Humanities / Re: Legal issues
« on: November 27, 2010, 06:50:00 PM »
This seems like a simple application of what was dubbed "New Judicial Federalism." Justice SDO would be pleased, I suspect.
2077
Politics & Religion / Re: Homeland Security and American Freedom
« on: November 14, 2010, 05:59:30 AM »
THE INFLUENCE GAME: Shippers fought cargo controls
By SHARON THEIMER, Associated Press Sharon Theimer, Associated Press
Tue Nov 9, 12:56 pm ET
.WASHINGTON – Despite knowing for decades that terrorists could sneak bombs onto planes, the U.S. government failed to close obvious security gaps amid pressure from shipping companies fearful tighter controls would cost too much and delay deliveries.
Intelligence officials around the world narrowly thwarted an al-Qaida mail bomb plot last month, intercepting two explosive packages shipped from Yemen with UPS and FedEx.
But it was a tip from Saudi intelligence, not cargo screening, that turned up the bombs before they could take down airplanes. Company employees in Yemen were not required to X-ray the printer cartridges the explosives were hidden inside. Instead, they looked at the printers and sent them off, U.S. officials said.
The scare is prompting officials in Washington and around the world to rethink air cargo security. On Monday the Obama administration announced new cargo rules banning freight out of Yemen and Somalia. It also restricted the shipment of printer and toner cartridges weighing more than a pound on all passenger flights and some cargo flights. Overall cargo security rules were unchanged.
In Congress, the Senate Homeland Security and Governmental Affairs Committee plans a hearing Nov. 16 to look at whether changes are needed to improve air cargo security. Transportation Security Administration Administrator John Pistole has been asked to testify.
Lobbying by the multibillion-dollar freight industry has helped kill past efforts to impose tough rules.
In 2004, when the Transportation Security Administration considered requiring screening for all packages on all flights, the Cargo Airline Association downplayed a terrorist threat. It argued slowing down shipping for inspections would jeopardize the shipping industry and the world's economy.
"As a practical matter, all-cargo aircraft operators today are permitted to accept freight from all persons and entities all over the world, including unknown shippers,
precisely because of the lack of any credible threat to all-cargo aircraft," the association, whose members included FedEx, UPS and other shippers, told the agency.
The government agreed.
"TSA believes that a requirement to inspect every piece of cargo could result in an unworkable cost of more than $650 million" in the first year, the agency wrote in 2004. The government wanted security, TSA said, "without undue hardship on the affected stakeholders."
The U.S. requires all packages be screened before being loaded onto passenger flights originating in the U.S. But there's no such requirement enforced for all cargo loaded onto U.S.-bound international passenger flights or on cargo-only flights, such as UPS and FedEx planes.
Jetliner bombings in the 1970s and the explosion of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 led the U.S. to examine cargo security long before the Sept. 11, 2001, attacks on New York and Washington made counterterrorism measures a top priority.
Those efforts came in fits and starts. For example, the Federal Aviation Administration and U.S. Postal Service once had such a poor relationship that neither agency carried out their part of a mail security agreement they reached in 1979 after a mail bomb blew up on an American Airlines flight, congressional investigators reported in 1994.
In 2007, a coalition of more than a dozen business groups lobbied against requiring close inspections of packages, arguing in a letter to then-Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii, that applying the same rules to passenger baggage and air cargo would set "an unachievable standard."
Only in August, nine years after 9/11, did the U.S. require that all cargo be screened on U.S. passenger flights. That rule drew heavy lobbying from airlines, air cargo carriers and trade groups. They devoted at least $32 million last year and $28 million so far this year to lobbying in Washington on that and other matters.
The air transportation industry, meanwhile, donated at least $8.3 million to congressional candidates in the 2009-10 election cycle, split almost evenly between Democrats and Republicans, an analysis by the nonpartisan Center for Responsive Politics found.
The TSA, carrying out a 2007 law requiring the screening of all cargo on passenger planes within three years, decided that starting last August it would mandate the screening of cargo on passenger planes loaded in the United States. It said its rule wouldn't apply to cargo placed on U.S.-bound passenger flights overseas, or to
cargo-only flights.
In leaving cargo loaded onto passenger flights outside the U.S. from the August requirement, the agency said it would work with other countries to try to standardize screening requirements and apply "risk assessment" to cargo headed for the U.S.
That decision drew praise from the International Air Cargo Association, whose members include FedEx, UPS and other major shippers.
The industry has long contended that requiring the careful inspection of every package would cost too much and take too long. Its companies want to be able to screen items quickly and they want the government to bear as much of the cost as possible.
A wide range of businesses and organizations have a stake in cargo screening rules. Among those lobbying, the National Funeral Directors Association wants to make sure the requirements do not delay the shipping of human remains and that remains are treated with dignity. The Association of Zoos & Aquariums doesn't want screening to harm animals as they are transported to zoos and other wildlife institutions, or endanger the people inspecting them.
Monday's announcement of new cargo rules came after Homeland Security Secretary Janet Napolitano held a conference call last Wednesday with cargo industry giants FedEx, UPS, German-based shipper Deutsche Post DHL AG and Netherlands-based TNT. On the call, Napolitano "underscored her commitment to partnering with the shipping industry to strengthen cargo security," her agency said.
The air cargo industry isn't short of political connections. FedEx spent $19 million lobbying from January through September alone; its chief executive, Frederick W. Smith, raised campaign money for Republican President George W. Bush and President Barack Obama's 2008 GOP rival, Sen. John McCain, and has made the White House guest lists of at least three presidents: Obama, Bush and Bill Clinton.
FedEx and UPS have served on various federal agency advisory panels over the years, and the head of the Cargo Airline Association has been part of an aviation security advisory committee. Association lobbyist Gina Ronzello used to work for the U.S. Transportation Department's inspector general, with a focus on aviation issues, and was a congressional aide. A Bush administration Customs and Border Protection official, Michael Mullen, lobbied last year for the Express Association of America, whose members included FedEx, UPS, DHL and TNT.
By SHARON THEIMER, Associated Press Sharon Theimer, Associated Press
Tue Nov 9, 12:56 pm ET
.WASHINGTON – Despite knowing for decades that terrorists could sneak bombs onto planes, the U.S. government failed to close obvious security gaps amid pressure from shipping companies fearful tighter controls would cost too much and delay deliveries.
Intelligence officials around the world narrowly thwarted an al-Qaida mail bomb plot last month, intercepting two explosive packages shipped from Yemen with UPS and FedEx.
But it was a tip from Saudi intelligence, not cargo screening, that turned up the bombs before they could take down airplanes. Company employees in Yemen were not required to X-ray the printer cartridges the explosives were hidden inside. Instead, they looked at the printers and sent them off, U.S. officials said.
The scare is prompting officials in Washington and around the world to rethink air cargo security. On Monday the Obama administration announced new cargo rules banning freight out of Yemen and Somalia. It also restricted the shipment of printer and toner cartridges weighing more than a pound on all passenger flights and some cargo flights. Overall cargo security rules were unchanged.
In Congress, the Senate Homeland Security and Governmental Affairs Committee plans a hearing Nov. 16 to look at whether changes are needed to improve air cargo security. Transportation Security Administration Administrator John Pistole has been asked to testify.
Lobbying by the multibillion-dollar freight industry has helped kill past efforts to impose tough rules.
In 2004, when the Transportation Security Administration considered requiring screening for all packages on all flights, the Cargo Airline Association downplayed a terrorist threat. It argued slowing down shipping for inspections would jeopardize the shipping industry and the world's economy.
"As a practical matter, all-cargo aircraft operators today are permitted to accept freight from all persons and entities all over the world, including unknown shippers,
precisely because of the lack of any credible threat to all-cargo aircraft," the association, whose members included FedEx, UPS and other shippers, told the agency.
The government agreed.
"TSA believes that a requirement to inspect every piece of cargo could result in an unworkable cost of more than $650 million" in the first year, the agency wrote in 2004. The government wanted security, TSA said, "without undue hardship on the affected stakeholders."
The U.S. requires all packages be screened before being loaded onto passenger flights originating in the U.S. But there's no such requirement enforced for all cargo loaded onto U.S.-bound international passenger flights or on cargo-only flights, such as UPS and FedEx planes.
Jetliner bombings in the 1970s and the explosion of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 led the U.S. to examine cargo security long before the Sept. 11, 2001, attacks on New York and Washington made counterterrorism measures a top priority.
Those efforts came in fits and starts. For example, the Federal Aviation Administration and U.S. Postal Service once had such a poor relationship that neither agency carried out their part of a mail security agreement they reached in 1979 after a mail bomb blew up on an American Airlines flight, congressional investigators reported in 1994.
In 2007, a coalition of more than a dozen business groups lobbied against requiring close inspections of packages, arguing in a letter to then-Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii, that applying the same rules to passenger baggage and air cargo would set "an unachievable standard."
Only in August, nine years after 9/11, did the U.S. require that all cargo be screened on U.S. passenger flights. That rule drew heavy lobbying from airlines, air cargo carriers and trade groups. They devoted at least $32 million last year and $28 million so far this year to lobbying in Washington on that and other matters.
The air transportation industry, meanwhile, donated at least $8.3 million to congressional candidates in the 2009-10 election cycle, split almost evenly between Democrats and Republicans, an analysis by the nonpartisan Center for Responsive Politics found.
The TSA, carrying out a 2007 law requiring the screening of all cargo on passenger planes within three years, decided that starting last August it would mandate the screening of cargo on passenger planes loaded in the United States. It said its rule wouldn't apply to cargo placed on U.S.-bound passenger flights overseas, or to
cargo-only flights.
In leaving cargo loaded onto passenger flights outside the U.S. from the August requirement, the agency said it would work with other countries to try to standardize screening requirements and apply "risk assessment" to cargo headed for the U.S.
That decision drew praise from the International Air Cargo Association, whose members include FedEx, UPS and other major shippers.
The industry has long contended that requiring the careful inspection of every package would cost too much and take too long. Its companies want to be able to screen items quickly and they want the government to bear as much of the cost as possible.
A wide range of businesses and organizations have a stake in cargo screening rules. Among those lobbying, the National Funeral Directors Association wants to make sure the requirements do not delay the shipping of human remains and that remains are treated with dignity. The Association of Zoos & Aquariums doesn't want screening to harm animals as they are transported to zoos and other wildlife institutions, or endanger the people inspecting them.
Monday's announcement of new cargo rules came after Homeland Security Secretary Janet Napolitano held a conference call last Wednesday with cargo industry giants FedEx, UPS, German-based shipper Deutsche Post DHL AG and Netherlands-based TNT. On the call, Napolitano "underscored her commitment to partnering with the shipping industry to strengthen cargo security," her agency said.
The air cargo industry isn't short of political connections. FedEx spent $19 million lobbying from January through September alone; its chief executive, Frederick W. Smith, raised campaign money for Republican President George W. Bush and President Barack Obama's 2008 GOP rival, Sen. John McCain, and has made the White House guest lists of at least three presidents: Obama, Bush and Bill Clinton.
FedEx and UPS have served on various federal agency advisory panels over the years, and the head of the Cargo Airline Association has been part of an aviation security advisory committee. Association lobbyist Gina Ronzello used to work for the U.S. Transportation Department's inspector general, with a focus on aviation issues, and was a congressional aide. A Bush administration Customs and Border Protection official, Michael Mullen, lobbied last year for the Express Association of America, whose members included FedEx, UPS, DHL and TNT.
2078
Politics & Religion / Re: The Politics of Health Care
« on: September 14, 2010, 07:07:56 PM »BD:
Thank you for that thoughtful analysis.
Thank you to you and DougMacG for the invitation, with apologies for my inability to be a consistent participant in this forum.
2079
Politics & Religion / Re: The Politics of Health Care
« on: September 14, 2010, 01:22:12 PM »
Guro Crafty, DougMacG, et al,
The starting point of this article is sound, in that it is true that bills usually have separable ("severance") contents to them, in large part due to the understanding that bills can be overturned in part, but not necessarily in whole, by the federal courts. (Sidenote: the Supreme Court, of course, disallowed the president, via the line item veto to do the same due to a violation of the "Presentment Clause" found in Article I.) So, yes, in theory, the Supreme Court or lower federal court could, in fact, overturn the health care plan in whole, not just in part.
However, I am not sure that the author is thinking lucidly in much of the other portions of the article. For example, he plays very loosely with the language of the Constitution in the article. He says: "the feds must argue that it is necessary and essential to ObamaCare" and "the feds' oral arguments emphasizing the necessity and importance of the personal mandate" (emphasis mine). That is NOT what the Constitution says, however. The Constitution (Article I, section 8, clause 18) says "The Congress shall have power ... to make all Laws which shall be necessary and proper (emphasis mine). This distinction may be small, but it is important. "Proper" has historically been taken rather loosely, and expansively. There has been some change in recent years, but on average, the federal government, even with recent conservative courts (as compared to the Warren Court), has most often sided with the national government in Commerce Clause cases.
I also think that he misunderstands the power that courts have. Courts are weak, by design. Alexander Hamilton wrote famously that the federal judicial branch lacked "the purse and the sword," powers granted to Congress and the executive branch, respectively. There is no real enforcement mechanism that court's enjoy. President Jackson once noted that "John Marshall has made his decision, now let's see him enforce it." It is true that the federal bench has seen its powers increase in recent years, but that is a function of the powers of the federal government's increased powers, not really the bench vs. the elected branches (see for example Gerald Rosenberg's excellent book The Hollow Hope). For all the talk of the threat of the judiciary, the fact is that, in some very real ways (appointment by the president ad Senate, salary increases by Congress, control over types of cases the Supreme Court can hear, possibility of impeachment, etc. etc.), the judiciary is not the spectre that many on both sides of the ideological spectrum think that it is.
Moreover, it takes enforcement of judicial decisions to make a decision become policy. The executive branch is charged with that enforcement. There is an appeals system in place. The idea that a "single judge can end all that strife" is (very probably) false.
Furthermore, I have seen claims in recent news articles that the case discussed by the author and another filed by the Florida are "likely headed to the Supreme Court." (Remember that , as the article notes, the initial challenge upheld the law.) I would love to see the evidence for the claim rather than just it being asserted. The federal district (trial courts) hear more than 300,000 cases a year. About 60,000 of those cases are then appealled to the Circuit Courts. Of those, the Supreme Court hears about 80 a year. Statistically, that means that the case will likely NOT reach the Supreme Court, even it is appealled (the Supreme Court receives about 10,000 appeals a year). It only takes four justices to hear a case, in what is called the "Rule of Four," so it might seem likely that the Supreme Court would hear the case. However, assuming it came to Court having upheld the legislation, it seems unlikely that the liberal block would vote to take it. It also seems unlikely that the conservative block would vote to hear it because they aren't necessarily sure how Kennedy would vote. Many argue that he has moved "right" since O'Connor's retirement, but he also is a student of international law, much to the chagrin of many conservatives (see his death penalty jurisprudence, for example). Therefore, he is probably not as concerned as his conservative colleagues about a "European" model of health care. This means that the conservatives would fear the judicial "seal of approval" on the national health care legislation.
Finally, there is a very real question about whether the Supreme Court would find the case to justiciable. The Court has long held that cases which present a "political question," or one that is best decided by the elected branches, would not be heard by that court. The most famous example of this is the Vietnam war, which had several legal challenges, none of which were ever heard by the Supreme Court. It is very possible that even ideological sympathetic justices would not wish to hear the case due to the political nature of the question. (Again, remember that as of now the first legal challenge to the law upheld the law.) If the Supreme Court refuses to hear a case, the lower court decision would stand in that instance.
I liked the article because it is interesting and thought provoking, but I think there are holes in the overall assertions made by the author.
The starting point of this article is sound, in that it is true that bills usually have separable ("severance") contents to them, in large part due to the understanding that bills can be overturned in part, but not necessarily in whole, by the federal courts. (Sidenote: the Supreme Court, of course, disallowed the president, via the line item veto to do the same due to a violation of the "Presentment Clause" found in Article I.) So, yes, in theory, the Supreme Court or lower federal court could, in fact, overturn the health care plan in whole, not just in part.
However, I am not sure that the author is thinking lucidly in much of the other portions of the article. For example, he plays very loosely with the language of the Constitution in the article. He says: "the feds must argue that it is necessary and essential to ObamaCare" and "the feds' oral arguments emphasizing the necessity and importance of the personal mandate" (emphasis mine). That is NOT what the Constitution says, however. The Constitution (Article I, section 8, clause 18) says "The Congress shall have power ... to make all Laws which shall be necessary and proper (emphasis mine). This distinction may be small, but it is important. "Proper" has historically been taken rather loosely, and expansively. There has been some change in recent years, but on average, the federal government, even with recent conservative courts (as compared to the Warren Court), has most often sided with the national government in Commerce Clause cases.
I also think that he misunderstands the power that courts have. Courts are weak, by design. Alexander Hamilton wrote famously that the federal judicial branch lacked "the purse and the sword," powers granted to Congress and the executive branch, respectively. There is no real enforcement mechanism that court's enjoy. President Jackson once noted that "John Marshall has made his decision, now let's see him enforce it." It is true that the federal bench has seen its powers increase in recent years, but that is a function of the powers of the federal government's increased powers, not really the bench vs. the elected branches (see for example Gerald Rosenberg's excellent book The Hollow Hope). For all the talk of the threat of the judiciary, the fact is that, in some very real ways (appointment by the president ad Senate, salary increases by Congress, control over types of cases the Supreme Court can hear, possibility of impeachment, etc. etc.), the judiciary is not the spectre that many on both sides of the ideological spectrum think that it is.
Moreover, it takes enforcement of judicial decisions to make a decision become policy. The executive branch is charged with that enforcement. There is an appeals system in place. The idea that a "single judge can end all that strife" is (very probably) false.
Furthermore, I have seen claims in recent news articles that the case discussed by the author and another filed by the Florida are "likely headed to the Supreme Court." (Remember that , as the article notes, the initial challenge upheld the law.) I would love to see the evidence for the claim rather than just it being asserted. The federal district (trial courts) hear more than 300,000 cases a year. About 60,000 of those cases are then appealled to the Circuit Courts. Of those, the Supreme Court hears about 80 a year. Statistically, that means that the case will likely NOT reach the Supreme Court, even it is appealled (the Supreme Court receives about 10,000 appeals a year). It only takes four justices to hear a case, in what is called the "Rule of Four," so it might seem likely that the Supreme Court would hear the case. However, assuming it came to Court having upheld the legislation, it seems unlikely that the liberal block would vote to take it. It also seems unlikely that the conservative block would vote to hear it because they aren't necessarily sure how Kennedy would vote. Many argue that he has moved "right" since O'Connor's retirement, but he also is a student of international law, much to the chagrin of many conservatives (see his death penalty jurisprudence, for example). Therefore, he is probably not as concerned as his conservative colleagues about a "European" model of health care. This means that the conservatives would fear the judicial "seal of approval" on the national health care legislation.
Finally, there is a very real question about whether the Supreme Court would find the case to justiciable. The Court has long held that cases which present a "political question," or one that is best decided by the elected branches, would not be heard by that court. The most famous example of this is the Vietnam war, which had several legal challenges, none of which were ever heard by the Supreme Court. It is very possible that even ideological sympathetic justices would not wish to hear the case due to the political nature of the question. (Again, remember that as of now the first legal challenge to the law upheld the law.) If the Supreme Court refuses to hear a case, the lower court decision would stand in that instance.
I liked the article because it is interesting and thought provoking, but I think there are holes in the overall assertions made by the author.
2080
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 15, 2010, 01:48:41 PM »Backtracking in the thread a bit, I want to comment on some points gone by:
Bigdog wrote: "there may be a self selection problem. Professors don't make much money, despite the arguments to the contrary. If may be that conservatives largely take their talents to the private sector, where the pay is better."
I agree with this point. Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.
"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"
In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly. Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson. At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980. He taught and tested only on his view. He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page. That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.
I wonder how well lecturer Obama presented opposing views on contested constitutional issues. I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa. Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.
As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...
I can only tell you that my students often try to "figure out" my politics only to say at the end of the semester that they have no idea.
Pro-DOMA: (This is quick, so don't expect anything too high.) In the 1960's, the federal government decided that it could mandate that states could no longer outlaw or ban interracial marriages. Why, now, can't the federal govt. BAN same sex marriages?
Also, professors can assign readings that cover multiple ideological POV.
It really isn't as hard as you guys make it seem.
2081
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 15, 2010, 04:24:24 AM »Woof Bigdog,
Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.
College isn't like a pre-K education where you point to a picture and say "Car. Can you say car? Carrrrrr." College is a place where you go to learn how to decipher, question, apply. How can one learn the weakness of an opposing argument without hearing it?
And your earlier point about 2+2 equaling 22 is just silly. There are no respected mathematicians who say something like that. There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation. As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer.
2082
Politics & Religion / Re: Media Issues
« on: July 14, 2010, 11:12:29 AM »
Excellent sources. Thank you for sharing! I might use one or both for classes. And see, we DO agree!
2083
Politics & Religion / Re: Media Issues
« on: July 14, 2010, 09:39:32 AM »
DougMacG... just know that we will agree on something someday!!! The point I was trying make, poorly, as it turns out, was that the media have a way of waiting until sensational stories are made to report on them.. However, as has been reported widely in the wake of the BP oil gusher, there is a long history of noncompliance, incompetence, and abuses by this company. If the media chose to make a big deal about this before the oil spill, there might not be an "after the oil spill" to report.
2084
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 13, 2010, 04:40:23 PM »
P.C.,
The issue I had with your post was not the inherent message, it was the claim that "ANY class... or book" will poison the mind or some such. That is the part that isn't true. The Second Amendment Primer doesn't. Any book by John Lott doesn't. Any book written by Wayne LaPierre doesn't. And neither does every single class in college.
The issue I had with your post was not the inherent message, it was the claim that "ANY class... or book" will poison the mind or some such. That is the part that isn't true. The Second Amendment Primer doesn't. Any book by John Lott doesn't. Any book written by Wayne LaPierre doesn't. And neither does every single class in college.
2085
Politics & Religion / Media coverage of accidents
« on: July 13, 2010, 09:12:10 AM »
The above posts reminded me of this article about media coverage of the coal mine accisnt in West Virginia a few years ago. Although it focuses on the mining industry, I think there might be some parallels with the current coverage of the oil spill.
http://mediacrit.com/covering-coal-mining-by-accident
Covering Coal Mining by Accident
The horrible mining accident in Sago, West Virginia again focused the news media’s attention on the treacherous work of coal mining.
At one point, in live, late night coverage, CNN’s Anderson Cooper reminded viewers that this Appalachian region mines a lot of coal, which is used to fuel many of the power plants supplying electricity to viewers around the country. (In fact, more than half of the electricity used in the U.S. comes from coal.)
As elementary as Cooper’s observation seemed, it was an important connecting of the dots between the electricity we effortlessly consume and the dangerous labor conditions of coal mining.
But, the news media have themselves to blame for our collective ignorance on the coal industry. (Imagine a reporter from Saudi Arabia feeling it necessary to tell us that this is where a lot of our oil comes from.)
A review of network and cable television news over the past four years indexed by the Vanderbilt Television News Archive suggests that the news tells us about coal mining literally by accident.
• In 2005, national television news carried a total of four reports about coal mining, including a Fox story on a deadly China coal mine flood, and a CNN “Then and Now†story on the 2002 rescue of nine trapped coal miners in Pennsylvania—a story CNN liked so much they broadcast it twice. An exception to the accident-related coverage was an ABC News package and a full Nightline report on coal’s comeback as an energy source.
• It was more coverage by accident in 2004, with two reports for the year, covering mine explosions in China and Siberia.
• In 2003, the TV networks did a few reports on trapped miners in Russia, and another piece recalling the Pennsylvania mine rescue of 2002.
• Coverage of the Pennsylvania Quecreek Mine disaster and rescue accounted for nearly all of the coal mining-related reports of 2002. Here was the story so good it seemed like it came from Hollywood (and eventually was sold there). A total of 43 national TV news reports, most in just a few days in late July and early August, gave us wall-to-wall coverage of nine miners rescued from a flooded mine 240 feet underground.
Editors might argue that there is no “peg†for news about coal mining unless there is an accident involved.
Yet accidental coverage tells only part of the story. The news media habitually jumps from accident to accident, and misses disturbing patterns that could be the basis for a different kind of story.
First, The United Mineworkers of America (UMWA) union charged that the U.S. Department of Labor’s Mine Safety & Health Administration (MSHA)—a regulatory agency whose top ranks are staffed by former coal industry officials—is lax in enforcing Mine Act safety violations, and doesn’t have sufficient manpower to properly inspect the nation’s 1,400 mines.
Recent accidents illustrate the problem. In the Quecreek incident, it was later discovered that the workers had been supplied with faulty maps that led them to accidentally drill into flooded, abandoned mine tunnels. In Sago, as journalists quickly discovered after the disaster, the mining company had a list of more than 200 health and safety violations last year, including several that the company knew about but didn’t fix. Other mining accidents in recent years illustrate the same situation of preexisting safety problems gone uncorrected.
Second, the mining industry likes to point out the declining fatality rate in mining – 28 in 2004, compared to 133 in 1980, and more than 1,000 annually in years before the 1940s. But, the industry (as well as the industry-friendly MSHA) have ignored miners’ requests to reduce unsafe levels of coal dust, which is both a hazardous explosive in the mine and dangerous to breathe—more than 1,000 miners a year die from black lung disease.
As the United States steps up coal production, let’s start purposefully telling more stories about coal and how it is produced. The big arguments for coal are that it’s our coal, and it’s cheaper than other forms of energy. But, we need to start a public discussion about all of coal’s costs – to the land and water where it’s mined, to the atmosphere where it’s burned, and to the workers who risk their health and lives to dig it up.
http://mediacrit.com/covering-coal-mining-by-accident
Covering Coal Mining by Accident
The horrible mining accident in Sago, West Virginia again focused the news media’s attention on the treacherous work of coal mining.
At one point, in live, late night coverage, CNN’s Anderson Cooper reminded viewers that this Appalachian region mines a lot of coal, which is used to fuel many of the power plants supplying electricity to viewers around the country. (In fact, more than half of the electricity used in the U.S. comes from coal.)
As elementary as Cooper’s observation seemed, it was an important connecting of the dots between the electricity we effortlessly consume and the dangerous labor conditions of coal mining.
But, the news media have themselves to blame for our collective ignorance on the coal industry. (Imagine a reporter from Saudi Arabia feeling it necessary to tell us that this is where a lot of our oil comes from.)
A review of network and cable television news over the past four years indexed by the Vanderbilt Television News Archive suggests that the news tells us about coal mining literally by accident.
• In 2005, national television news carried a total of four reports about coal mining, including a Fox story on a deadly China coal mine flood, and a CNN “Then and Now†story on the 2002 rescue of nine trapped coal miners in Pennsylvania—a story CNN liked so much they broadcast it twice. An exception to the accident-related coverage was an ABC News package and a full Nightline report on coal’s comeback as an energy source.
• It was more coverage by accident in 2004, with two reports for the year, covering mine explosions in China and Siberia.
• In 2003, the TV networks did a few reports on trapped miners in Russia, and another piece recalling the Pennsylvania mine rescue of 2002.
• Coverage of the Pennsylvania Quecreek Mine disaster and rescue accounted for nearly all of the coal mining-related reports of 2002. Here was the story so good it seemed like it came from Hollywood (and eventually was sold there). A total of 43 national TV news reports, most in just a few days in late July and early August, gave us wall-to-wall coverage of nine miners rescued from a flooded mine 240 feet underground.
Editors might argue that there is no “peg†for news about coal mining unless there is an accident involved.
Yet accidental coverage tells only part of the story. The news media habitually jumps from accident to accident, and misses disturbing patterns that could be the basis for a different kind of story.
First, The United Mineworkers of America (UMWA) union charged that the U.S. Department of Labor’s Mine Safety & Health Administration (MSHA)—a regulatory agency whose top ranks are staffed by former coal industry officials—is lax in enforcing Mine Act safety violations, and doesn’t have sufficient manpower to properly inspect the nation’s 1,400 mines.
Recent accidents illustrate the problem. In the Quecreek incident, it was later discovered that the workers had been supplied with faulty maps that led them to accidentally drill into flooded, abandoned mine tunnels. In Sago, as journalists quickly discovered after the disaster, the mining company had a list of more than 200 health and safety violations last year, including several that the company knew about but didn’t fix. Other mining accidents in recent years illustrate the same situation of preexisting safety problems gone uncorrected.
Second, the mining industry likes to point out the declining fatality rate in mining – 28 in 2004, compared to 133 in 1980, and more than 1,000 annually in years before the 1940s. But, the industry (as well as the industry-friendly MSHA) have ignored miners’ requests to reduce unsafe levels of coal dust, which is both a hazardous explosive in the mine and dangerous to breathe—more than 1,000 miners a year die from black lung disease.
As the United States steps up coal production, let’s start purposefully telling more stories about coal and how it is produced. The big arguments for coal are that it’s our coal, and it’s cheaper than other forms of energy. But, we need to start a public discussion about all of coal’s costs – to the land and water where it’s mined, to the atmosphere where it’s burned, and to the workers who risk their health and lives to dig it up.
2086
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 13, 2010, 04:45:46 AM »My experience does not correspond with yours. As a student in non-elite schools, I've been subject to profs who felt their role was that of propagandist for post-modern neo-marxist dogma. As a criminal justice student, I took a class on sexual assault, and instead of actually getting useful information on the subject to enhance my skills as a law enforcement officer I got to read on how America was a "rape culture" and every sexual act between a man and a woman was an act of rape because no woman in our society could truly give consent, and any woman who thought she did was a victim of "false consciousness".
I took a class on "multicultural communication" which was nothing but a extended rant by the prof on the evils of America, western civilization and anything remotely christian, heterosexual and/or white.
In addition, I had a personal connection to an academic who was the product of a elite schools and seeking a tenure track position in academia in those school. She was utterly terrified of me dooming her career because of my line of work and political opinions. She was a wide-eyed believer in all the leftist drivel she had been immersed in since since her undergrad days.
I'm not saying that it never happens, and I too was in at least 2 classes as an undergraduate where similar teachings occured. But I majored in history and political science, so 2 of the 30 or so classes I had to take didn't seem so bad to me. And, I never saw anything similar to when I was in graduate school, either in the classes I took or TA'd in. All I am saying is that I think, given all of the professors that I know, the instances are overreported (or at least overblown). Thank you for sharing your experience.
2087
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 02:59:30 PM »
This is an interesting post. I think I would like to read the book discussed. I think that liberals should be careful what they ask for. Brennan and Marshall began the call to allow (for lack of a better term) what became known as "new judicial federalism." The conservative justices won that battle. I think liberal justices, judges, and attorneys should have more foresight than they seem to when it comes to new ways to address judicial political use. (And before people jump down my throat, please note that I am not advocating for this, or any, interpretation, other than what is found within the document itself.)
2088
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 02:28:10 PM »BD, see any patterns here?
http://pajamasmedia.com/blog/concealed-carry-on-campus/?singlepage=true
http://www.discoverthenetworks.org/guideDesc.asp?type=aca
I sure do. I see that evidence is often misconstrued and misleading. Here are some possible ways:
1, there are many states, including the one where I reside, where there is no such thing as a "registered" Republican or Democrat. According one source, FairVote.com, there are 17 such states, including Michigan, Missouri, Texas, Vermont, and Virginia. All of these states have at least one university that I would consider "elite."
2, there is no definition of an "elite" university.
3, since only about 20-30 "elite" university's are discussed, that leaves several hundred that were not discussed. I wonder about the ideological make up there, since the vast majority of college students are being educated at those types of schools.
4, just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom.
5, the generation that became "radicalized" and was teaching in 1964 is retiring or has retired. I can virtually guarantee that in 10-20 there will be little discussion about the politics of college professors.
6, I have been on several academic job interviews, and I wasn't asked about my political preferences at any of them.
7, there may be a self selection problem. Professors don't make much money, despite the arguments to the contrary. If may be that conservatives largely take their talents to the private sector, where the pay is better.
As for guns on campus, I am frustrated that there aren't more schools that recognize the right to carry. However, public schools are beginning to allow their students to do so, and private colleges aren't bound by the Bill of Rights.
2089
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 02:08:58 PM »BD:
So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?
I didn't say there are reasonable arguments, I said that reasonable people debate. I don't say that for mere semantical reasons. I, personally, don't find anti-2nd amendments to be right. I have become convinced, through my own reading, that the right is an individual one. That does not mean that everyone feels that way. I would rather that students, if they become convinced, become convinced because of their ideas and research than me decideing it for them.
Here are some sources for the other side though: David T. Konig, "Arms and the Man: What Did the Right to 'Keep' Arms mean in the Early Republic?" Law and History Review, Spring 2007.
http://www.historycooperative.org/journals/lhr/22.1/forum_konig.html
2090
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 09:26:10 AM »
Sorry about the misunderstanding. I disagree. Teaching politics isn't the same as teaching science or math. I think we can all agree that 2+2=4, or the correct definition of a vector (for examples). And, while there are some facts about politics (100 senators; bicameral legislature), there are also opinions. There is a great deal of disagreement, among reasonable and educated people, about the meaning of the 2nd Amendment. In the same way that you wouldn't want me to teach the greatness of Warren Court (say), others wouldn't want me to teach one side of a multisided issue. In many constitutional areas (2nd Amd; privacy; expansion of presidential powers, etc. etc.) I expose students to competing views and ask them to think about it. What are logical fallacies, which side presents a better argument, which is most compatable with what you know of early and modern American history, and the like. Form an argument and support it. I can't (or won't) teach what to think.
I should add, however, that will happily discuss the decison to incorporate the 2nd to the states!
I should add, however, that will happily discuss the decison to incorporate the 2nd to the states!
2091
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 08:28:44 AM »Thank you.
PC's point about the Preamble seems to me quite strong. Indeed, IMHO it demolishes any idea that the Second is not an individual right. What do you think?
I have always thought it was an individual right.
2092
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 07:54:59 AM »
Guro Crafty, I teach my students that there is a debate, and I give the historical discussions around both a collective and an individual right. We have used many original documents, including the letter from Ashcroft to the NRA-ILA from 2001 (maybe 2002, not in my office at the moment). We also read much from the Founding period, including the Federalist and the Anti-Federalist's ideas. (This is a general overview, since I have upper and lower level classes, and I try to alter the material taught every semester in some of the classes.) I have also been asked by liberal and conservative student organizations to come to their meetings to discuss my personal feelings toward the 2nd Amendment, at which point I am never shy about providing being blunt about the way that I feel about it. I will also say that I hope to develop a class dedicated to the 2nd amendment within a few years.
I must also say that I am not the only member of the faculty at my college with a pro-2nd Amendment personal preference. Additionally, GM, for all of your eye rolling, I can tell you that there are many faculty members at many colleges and universities who do not have "liberal" agendas, some of whom are themselves conservative, and many of whom are honest enough to inform their students of competing viewpoints. So, no, not a dozen, but over the course of 10 or so years, probably more like a few hundred.
There are also colleges and universities that are known as conservative. I doubt very much that the majority of classes at Oral Roberts, James Madison, and Wheaton College, for example, are subjected to liberal ideas regarding the 2nd Amendment.
I must also say that I am not the only member of the faculty at my college with a pro-2nd Amendment personal preference. Additionally, GM, for all of your eye rolling, I can tell you that there are many faculty members at many colleges and universities who do not have "liberal" agendas, some of whom are themselves conservative, and many of whom are honest enough to inform their students of competing viewpoints. So, no, not a dozen, but over the course of 10 or so years, probably more like a few hundred.
There are also colleges and universities that are known as conservative. I doubt very much that the majority of classes at Oral Roberts, James Madison, and Wheaton College, for example, are subjected to liberal ideas regarding the 2nd Amendment.
2093
Science, Culture, & Humanities / DOMA and States Rights
« on: July 12, 2010, 05:03:43 AM »
http://www.newsweek.com/2010/07/09/federal-judge-rules-the-defense-of-marriage-act-unconstitutional-will-it-stick.html
Federal Judge Rules Defense of Marriage Act Unconstitutional. Will It Stick?
by Tara A. LewisJuly 09, 2010
Yesterday, Massachusetts federal district Judge Joseph Tauro declared that gay men and women recognized as married by their individual states should have access to the same federal benefits as heterosexual married couples. In doing so, he declared Article III of the federal Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman, unconstitutional. The controversial decision posits the question for both supporters and opponents of same-sex marriage of how to best support their cases and what the rulings, now under review by the Obama administration, will bring in the long term.
Tauro ruled on two cases, one filed by Massachusetts Attorney General Martha Coakley and the other by Gays & Lesbian Advocates & Defenders, a New England–based advocacy organization. His decisions apply only to Massachusetts residents. In those rulings, Tauro wrote that DOMA, enacted by Congress in 1996, violated the 10th Amendment of the Constitution by encroaching upon the state’s right to define marriage. It also violated the Constitution's equal-protection clause. In essence, since the federal law does not recognize same-sex marriage (though it's been legal in Massachusetts since 2004), Massachusetts would have to discriminate against same-sex couples by denying them the federal benefits straight married couples receive.
Though the ruling may be a major victory for gay couples in Massachusetts, several law professors and supporters of gay-marriage are afraid the decisions will be appealed. Jack Balkin, a law professor and political and legal blogger, writes that though he supports same-sex marriage, the arguments of Tauro’s decisions are “at war with each other” in both emphasizing a need for state sovereignty but also the federal government’s requirement to regulate family life through federal programs and benefits. Law professor and blogger Steven Taylor writes that were the 10th Amendment ruling the only one, it may “have the effect of reinforcing the constitutionality of bans on same-sex marriage around the country,” by “placing public policy over marriage in the hands of the state.” He hypothesizes that the equal-protection argument will likely prove more successful in future cases, specifically those dealing with same-sex couples who move from a state that recognizes gay marriage to one that does not.
Tauro’s ruling poses a dilemma for some conservatives, who often turn to the 10th Amendment when fighting for gun rights, school prayer, and in opposing the Obama administration's health-care reform and Wall Street bailouts. In an blog post titled "Why Teapartiers Should Oppose DOMA," The Atlantic's Andrew Sullivan writes that “The right is hoist on their own federalist petard and will now have to choose whether states' rights or marriage inequality is more important to them.” Whatever happens, Tauro’s ruling is a stir of life in an otherwise slow-moving debate on same-sex marriage: activists on both sides of the issue are still waiting for a ruling in California's Proposition 8 case, which challenges the state's ban on gay marriage. The L.A. Times reports that false rumors of a verdict from U.S. District Court Chief Judge Vaughn R.Walker drew disappointed crowds to San Francisco. And as with any new decision the lasting impacts of Tauro’s ruling remain unknown (though some are speculating on the backlash).
The Obama administration is now reviewing the ruling to decide whether the federal government will file an appeal. In June, Justice Department spokeswoman Tracy Schmaler said that though President Obama wants a legislative appeal of DOMA, “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
Federal Judge Rules Defense of Marriage Act Unconstitutional. Will It Stick?
by Tara A. LewisJuly 09, 2010
Yesterday, Massachusetts federal district Judge Joseph Tauro declared that gay men and women recognized as married by their individual states should have access to the same federal benefits as heterosexual married couples. In doing so, he declared Article III of the federal Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman, unconstitutional. The controversial decision posits the question for both supporters and opponents of same-sex marriage of how to best support their cases and what the rulings, now under review by the Obama administration, will bring in the long term.
Tauro ruled on two cases, one filed by Massachusetts Attorney General Martha Coakley and the other by Gays & Lesbian Advocates & Defenders, a New England–based advocacy organization. His decisions apply only to Massachusetts residents. In those rulings, Tauro wrote that DOMA, enacted by Congress in 1996, violated the 10th Amendment of the Constitution by encroaching upon the state’s right to define marriage. It also violated the Constitution's equal-protection clause. In essence, since the federal law does not recognize same-sex marriage (though it's been legal in Massachusetts since 2004), Massachusetts would have to discriminate against same-sex couples by denying them the federal benefits straight married couples receive.
Though the ruling may be a major victory for gay couples in Massachusetts, several law professors and supporters of gay-marriage are afraid the decisions will be appealed. Jack Balkin, a law professor and political and legal blogger, writes that though he supports same-sex marriage, the arguments of Tauro’s decisions are “at war with each other” in both emphasizing a need for state sovereignty but also the federal government’s requirement to regulate family life through federal programs and benefits. Law professor and blogger Steven Taylor writes that were the 10th Amendment ruling the only one, it may “have the effect of reinforcing the constitutionality of bans on same-sex marriage around the country,” by “placing public policy over marriage in the hands of the state.” He hypothesizes that the equal-protection argument will likely prove more successful in future cases, specifically those dealing with same-sex couples who move from a state that recognizes gay marriage to one that does not.
Tauro’s ruling poses a dilemma for some conservatives, who often turn to the 10th Amendment when fighting for gun rights, school prayer, and in opposing the Obama administration's health-care reform and Wall Street bailouts. In an blog post titled "Why Teapartiers Should Oppose DOMA," The Atlantic's Andrew Sullivan writes that “The right is hoist on their own federalist petard and will now have to choose whether states' rights or marriage inequality is more important to them.” Whatever happens, Tauro’s ruling is a stir of life in an otherwise slow-moving debate on same-sex marriage: activists on both sides of the issue are still waiting for a ruling in California's Proposition 8 case, which challenges the state's ban on gay marriage. The L.A. Times reports that false rumors of a verdict from U.S. District Court Chief Judge Vaughn R.Walker drew disappointed crowds to San Francisco. And as with any new decision the lasting impacts of Tauro’s ruling remain unknown (though some are speculating on the backlash).
The Obama administration is now reviewing the ruling to decide whether the federal government will file an appeal. In June, Justice Department spokeswoman Tracy Schmaler said that though President Obama wants a legislative appeal of DOMA, “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
2094
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: July 12, 2010, 04:57:13 AM »
I can say P.C. begins his post with a broad generalization that is also false. It is not the case that "Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind; things like saying the Second Amendment was put in the Bill of Rights to make sure the government had soldiers at the ready and now it is outdated for that purpose" (my emphasis).
I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular.
I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular.
2095
Science, Culture, & Humanities / NRA media in the wake of BCRA
« on: June 29, 2010, 09:01:06 AM »2096
Science, Culture, & Humanities / Re: Cleavin' the Kid
« on: June 29, 2010, 08:50:46 AM »QuoteThe point of NRA's radio show was to move around BCRA.
I'm sorry, the NRA generates magazine, television, radio, and web content that all perform a reporting function, and has done so to one degree or another for the 40 years I've been a member. Not sure what the acronym you refer to is, but does the NRA's press credentials armor them against the free speech prohibitions contained in McCain/Feingold and the Disclose Act? If not, how does one cleave that baby? If so, why should we care what unconstitutional prohibitions congress bats around?
I am aware that the National Rifle Association presents ideas in those media, and has done so for the 12 or so years that I have been a lifetime member. That does not change the fact the NRA purposefully began its own radio program so that it could act in a manner not prevented by the BCRA. Do you remember all of the hype when it strated its radio programming. It made announcements for months that the reason for the new format was so that BCRA did not prevent it from voicing political messages.
Much of BCRA has been overturned, in Citizens United. Why are we talking abouth this now?
2097
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: June 28, 2010, 10:37:39 AM »Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?
Well, this is kind a b.s. question from an original intentist. The freedom of press has always meant the freedom to produce political news.
http://caselaw.lp.findlaw.com/data/constitution/amendment01/06.html
"Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate." Oh, there goes the difficulty of original intent again.
Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment.
2098
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: June 28, 2010, 07:51:56 AM »Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?
Oh, a living Constitution argument!!!! Pretty liberal thiniking GM.
2099
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: June 28, 2010, 07:51:10 AM »Hmm, NRA publishes a lot of news so does that mean they shouldn't have been impacted by McCain Feingold and thus don't have to embrace expediency and sell out where the Disclose Act is concerned?
The point of NRA's radio show was to move around BCRA.
2100
Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters)
« on: June 28, 2010, 04:31:27 AM »As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?
Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.
Their was, indeed, quite clear. That is why "press" is included in the First Amendment.