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ontheedgeandscaredtodeath
Social climber
SLO, Ca
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Feb 19, 2016 - 08:42am PT
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Scalia was a polemic, partisan and result driven justice. He was hypocritical and intellectually dishonest. The court will be better off without his condescending and increasingly unhinged opinions.
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Norton
Social climber
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Feb 19, 2016 - 09:20am PT
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Only registered voters should be permitted to donate to political campaigns, individually. But we the people are going to have to change the constitution to get it done.
to add: individual donations limited to $2500
to add: either a constitutional amendment or a future supreme court overturning
Citizens Not United
forget a Constitutional Amendment, not gonna happen
that leaves a future SC, keep voting Republican to ensure that never happens
because
god, guns, gays
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JEleazarian
Trad climber
Fresno CA
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Feb 19, 2016 - 09:20am PT
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Exactly, X15X15
The refrain that "corporations aren't individuals" is a useless truism in the free speech context.
As far as donations to campaigns, monetary donations from corporations remain restricted. The issue in Citizens United was expression of what is clearly political speech.
And DMT, the reason the opinion is so long is because the dissent had to work extra, extra hard to say "Congress shall make no law . . . abridging freedom of speech" really means "Congress can restrict any speech it wants as long as it feels threatened by that speech."
Obviously, that perversion of language requires enormous effort to translate English to Newspeak.
John
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Ed Hartouni
Trad climber
Livermore, CA
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Feb 19, 2016 - 09:36am PT
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I think the whole discussion taking place on this is an interesting example of the ideals of the founding of the United States in action... ideals that permeate all levels of the society and bubble up in unexpected forums.
If anything, this nation is founded on the concept that no one voice has privilege over any other in being heard, and that the authority that the voice has is based on the quality of the speech. In some ways, the idea of a debate is entrenched in the very foundations of the country.
Viewed from this point, the manner in which the county has divided, nearly evenly, into two broad debating teams is not only interesting, but a brilliant instantiation of what the original debating teams foresaw, and brilliantly captured in our form of government. That government is not meant execute the business of governing efficiently, it is meant to maximize the debate over governing to the point that no one can claim they hadn't a part in the outcome.
My reaction to the sentiment that the Constitution should be amended to limit the Supreme Court membership to 18 years was very negative. It is precisely the randomness of the human condition and the grand discussion that is taking place that makes our form of government interesting, unique and effective, maybe not efficient, but really, who cares... the whole idea of getting the people involved is to deliver a government that is minimally intrusive, but effective enough.
The death of one of the Supremes forces a discussion that can expand the amplify the voice of the country at that particular time, the efficiency of having a term allows for planning for that turnover, which has a whole set of other problems. Not only that, but death and aging are all a part of the human condition, and it forces us to recognize that we are all in the same boat on that account... it is a humbling occurrence that visits us all. An occurrence, seemingly random, and a serendipitous jolt to complacency we often settle into during such long stretches of the debate. These events are, hopefully, annealing of our society and our form of government.
So, interestingly, boiled down to the current "politics" we have a big debate going on... the debating teams have taken up their motions and mustered their arguments. There is no moderator, or rather, the moderator is the public sentiment. The beauty or ugliness of the debate is a reflection of that public sentiment, and throughout the history of the nation, it oscillates through the full range between the two poles.
Viewed as a debate, albeit a very serious one, the claims of hypocrisy are sure to be leveled, an oft used debating technique to invalidate an opponents arguments... but in the end, the people will have their say.
What we get from this is not always the most enlightened decisions, not always the wisest course, not always the most efficient plans... but what we do get is something that we all were involved in debating. If there is ugliness it is merely the reflection of our country's continence at that time, as in the times when there is beauty.
The only "original" idea is that this debate should take place continually, and that however the sides are picked, that the people opt in on one or the other (or whatever the multiplicity is, or not at all if by choice). By constituting the government to provide for the debate, in perpetuity, was not only an act of brilliance, but a deep realization of source of the original complaint that drove the extreme act of revolution, so extreme that people were willing to die in the attempt to rectify the complaint.
Who is right and who is wrong in this debate? well anyone who's debated knows that is entirely beside the point, even if they use another commonly known tactic of grandstanding in their wielding of the sword of righteous indignation to counter claims to the contrary.
One can admire a gifted participant in this grand debate even if opposed to the ideas they argued for, and while feeling righteous in one's cause, it is not uncommon to despair in loosing a round of debate, but to aspire to the skill of one's opponent, as demonstrated by their mastery over your own argument, should be compensatory.
Fail, fail again, fail better.
In a paraphrase of TJ, "the people get the government they deserve"
indeed.
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blahblah
Gym climber
Boulder
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Feb 19, 2016 - 10:11am PT
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Who should replace Antonin Scalia?
Lawrence Krauss, physicist and science popularizer, has an idea...
Put an Atheist on the Supreme Court
We've already got three jews who I believe are all modern secular jews, which is another way to say atheist (a la Bernie Sanders).
It's slightly interesting that people who monitor the world about "diversity" don't complain that SCOTUS lacks even a single Protestant, which, much to the chagrin of ST, remains the dominant religious group in the US (counting atheism as a "regligion").
If things were random, what would be the odds of such a thing happening?
If about 50% of the population is protestant, the odds should be something should be 0.2% that this state of affairs would happen by chance.
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JEleazarian
Trad climber
Fresno CA
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Feb 19, 2016 - 10:59am PT
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I'm sure that's interesting but I said nothing about the length of their opinions.
Sorry. My mistake. I meant dirtbag.
John
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dirtbag
climber
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Topic Author's Reply - Feb 19, 2016 - 11:19am PT
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John, I've stayed silent on CU because I haven't read it yet. But I've enjoyed reading the discussion between you and others.
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Ed Hartouni
Trad climber
Livermore, CA
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Feb 19, 2016 - 12:26pm PT
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do all assemblies of people have the rights, analogous to "corporate personhood"?
my guess is that the staunches defenders of these rights would not feel the same way about the rights of labor unions, which are also assemblages of people.
arguing for or against the legal fiction of "corporate personhood" has to be viewed as just an argument, a purposeful one, on how to treat such organizations in a legal manner. We have chosen, largely by the stochastic process of law suits, to seize on this particular "fiction." Other's are possible.
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Fat Dad
Trad climber
Los Angeles, CA
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Feb 19, 2016 - 12:57pm PT
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This thread prompted me to go back and read New York Times Co. v. Sullivan, for the first time in about 30 yrs. Apart from revealing that nowhere did the Court consider the issue that a company (The Times) was engaging in the challenged speech, it made for terrific reading about the significance of free speech in our society. Here's an excerpt:
Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
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rbord
Boulder climber
atlanta
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Feb 19, 2016 - 01:00pm PT
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As soon as we win this battle over the corporations buying our elections we can move onto the problem of corporations buying our beliefs through their control of the media. And to hell with those car making corporations and their damn control of where I'm going in my self-driving car. I'll just make everyone build their own damn car - that'll show them they don't own me!
Yet somehow Bernie thrives.
In the New Hampshire Republican exit polls, 66% supported banning Muslims from the country. Those were us people, not corporations. The problem is always more about us than we like to admit.
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JEleazarian
Trad climber
Fresno CA
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Feb 19, 2016 - 01:47pm PT
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do all assemblies of people have the rights, analogous to "corporate personhood"?
my guess is that the staunches[t] defenders of these rights would not feel the same way about the rights of labor unions, which are also assemblages of people. [Emphasis added]
I respectfully disagree with the emphasized statement, Ed. While many oppose mandatory dues collection going for political positions individuals do not support, I do not see them saying unions should be muzzled. If, as the unions claim, a prohibition on compulsary union membership would cripple their political activity, does that not constitute an admission that the political positions they take don't agree with those of their membership?
I think, however, that your description as assemblages of people (or to use a less ambiguous legal term, assemblages of individuals), makes a good analogy for dealing with corporations, partnerships, LLC's, governments, and other entities composed of multiple individuals. In particular, I think that analysis should first determine if the group associates voluntarily or involuntarily, but even that distinction has ambiguity.
For example, those living in California are subject to the laws of the State of California, whether they like it or not. Is this voluntary, because they can choose to live elsewhere, or involuntary, because eveyone in California is subject? Constitutionally, we generally view governments as involuntary associations. For example, the Bill of Rights has no relevance without some form of state action. If ST says that offensive expression is off-limits, it can do so because one chooses to participate here, and in so doing, consents to the terms of use. You have no recourse if ST bans you for failure to adhere to its guidlines.
Why don't we say the same thing about the State of California? If the State of California passed a law making the use of offensive language a crime, that law would not survive an attack under the First and Fourteenth Amendments, because it violates free speech. (Lest you wonder, offensive speech is the only speech that needs protection. Inoffensive speech, by definition, is not restricted).
I think the distinction lies, in part, in the power a government has compared with that of a non-governmental association of individuals. Governments can exercise police powers that private associations cannot, and they can exercise those powers in ways that end a person's liberty or even a person's life. Private entities have no such power. The Constitution reflects a much greater concern for excessive government power than excessive private power. This led to a spectacular and shameful failure - the tolerance of slavery - that took our most costly war to fix. In general, however, the Constitution correctly views governmental power - not private, voluntary associations - as a threat to freedom so much greater than any other, that it requires special limitations.
The distinction between a government and a private entity guided the majority in Citizens United. If the court upheld McCain-Feingold's prohibition on non-media corporations' political advertising, it would allow the government to control speech of a voluntary association of individuals. What government would not be tempted to exercise that control in a way that aided those already in power? That danger undergirds the First Amendment jurisprudence on freedom of expression, and undergirded the majority opinioin.
The dissent found the influence of advertising by private associations of individuals a graver threat to self governance than giving the government control of the expression that advertising represented. The problem for the dissent was how to get around the stark prohibition on abrindgement of freedom of speech so that the government could regulate what was clearly political speech. The vehicle the dissent chose was to say that the framers of the Constitution never contemplated the sorts of corporations we have now, and never meant for the First Amendment to allow for unfettered advertising by groups controlling so much money.
Even if true, that argument runs afoul not only of the clear language of the First Amendment, but of the underlying philosphy behind freedom of speech. That's why the dissent is about four times as long as the majority opinion. It has an impossible task -- arguing that clear language does not mean what it says. To make matters worse for the dissent, the press is now almost totally dominated by associations of individuals with limited liability. If the Constitution did not envision corporations that did not exist in the late 18th Century, and therefore could not have intended freedom of speech to apply to corporations, how can freedom of the press apply? The reasoning [sic] of the dissent regarding freedom of speech applies - or misapplies - equally to freedom of the press.
All of these reasons cause the dissent - and those critical of the majority opinion - to go around in circles. Why don't corporations have protected speech? Because the Constitution never contemplated their existence. Then why do corporations have freedom of the press? Because the press is dominated by corporations. But those corporations didn't dominate in 1787 did they? No, but the Constitution specifically protects "the press," and that's who the press is now. But doesn't the Constitution protect "speech," and isn't a film arguing against a political candidate speech? Yes it's speech, but a corporation is saying it and the Consitution didn't contemplate corporations. . . .
If that train goes by the station again, can we get off? The dissent's argument boils down to this: we're afraid of corporate political ads, so we can ban them despite what the First Amendment says about speech. It doesn't take much imagination to see that this argument allows the government to ban any speech by which it feels threatened, and the guarantee of free speech is now meaningless.
And so it goes.
John
Edit:
Steve (I wasn't sure if calling you by your first name was OK until I saw your last post) I agree that no one mentioned the corproate status of the Times in the opinion, majority or dissent. My point was that no one had a problem with a corporation having rights under the First Amendment in 1964, so it's incorrect to say that Citizens United is unprecedented in granting those rights. Do you think Justice Black would be impressed with the dissent's argument?
By the way, was Nimmer still teaching First Amendment law when you were there? I avoided his copyright class because I had no interest in entertainment law, but I took his First Amendment class (aka Con Law II) and it was an absolute delight. He gave us a blow-by-blow of his oral argument before the SCOTUS in Cohen v. California. At the end of the year, he invited us to his house. On his sofa was a pillow, the front of which said "One man's vulgarity is another man's poetry." The rear of it said "F*ck the draft."
John
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Ed Hartouni
Trad climber
Livermore, CA
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Feb 19, 2016 - 02:43pm PT
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the people who are employed by corporations and such entities are stakeholders in the companies, yet they are not considered as a part of the people who are so assembled. Rather it is the owners, management, the board and stockholders who are recognized as so assembled and it is their rights collectively embodied in the fiction of "corporate personhood."
So what of the rights of the other stakeholders? Who advocates for them and who protects their interests?
The Constitution did not anticipate everything, the judicial system does not depend on a fixed set of laws with which to adjudicate each situation, rather on the body of law as it is made. I'm not so concerned about whether or not the Constitution anticipated corporations, but I think your history might be a bit askew...
as usual, Wiki has an interesting POV on this
http://en.wikipedia.org/wiki/Corporate_personhood
with a discussion of the American colonial days too.
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HermitMaster
Social climber
my abode
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Feb 19, 2016 - 02:47pm PT
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the people who are employed by corporations and such entities are stakeholders in the companies, yet they are not considered as a part of the people who are so assembled. Rather it is the owners, management, the board and stockholders who are recognized as so assembled and it is their rights to form together.
So what of the rights of the other stakeholders? Who advocates for them and who protects their interests?
How about we give them all a say in what is going on and quit trying to make one side or the other the victor...
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WBraun
climber
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Feb 19, 2016 - 03:05pm PT
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Scalia was a mob lawyer/judge dread.
He was 0wned by the big money (Wall Street crooks), Banks and big corporations ........
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blahblah
Gym climber
Boulder
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Feb 19, 2016 - 03:20pm PT
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Scalia was a mob lawyer/judge dread.
He was 0wned by the big money (Wall Street crooks), Banks and big corporations ........
I believe there's actually only been one crooked Supreme Court justice--the Democrat appointed Abe Fortas, who resigned rather than face impeachment.
Federal judges don't really need to be corrupt--they get a nice salary for life (they've "interpreted" the Constitution as saying that their salaries can never be reduced--even if every other American were reudced to absolute penury, we would still have to make sure that every federal judge, including retired ones, receives 100% of their highest salary until they're dead).
Nice job if you can get it I suppose
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Jorroh
climber
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Feb 19, 2016 - 06:03pm PT
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Important to point out that corporations don't have to disclose their political spending to their owners.
Its actually pretty laughable to claim that corporations act as some sort of conduit for the political voice of their owners.
In this respect corporations are screwing their owners just as much as they are screwing everyone else.
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