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[SCOTUS] thread (Leak talk over thar)

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Posts

  • shrykeshryke Member of the Beast Registered User regular
    Polaritie wrote: »
    Knight_ wrote: »
    Polaritie wrote: »
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

    blame the british for that one

    The British are responsible for most of the bill of rights really. The entirety of it is basically a list of things European countries had been pulling and the states wanted to be sure the federal government couldn't.

    The 3rd is by far the most hilarious and random of them. It's a 300 year old meme post.

    Knight_Commander ZoomBlackDragon480Martini_PhilosopherMunkus BeaverHakkekageLord_AsmodeusN1tSt4lker
  • MorganVMorganV Registered User regular
    Phoenix-D wrote: »
    Polaritie wrote: »
    Polaritie wrote: »
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

    The decision was pretty much "we are unable to rule because of the lack of Third Amendment jurisprudence."

    ...somehow that's even more cowardice than I was expecting.

    Also circular!

    Hey, it's the basic argument used for qualified immunity.

    "This case where a cop shot a black man for running away while wearing black trainers is different to that case where a cop shot a black man for running away while wearing teal trainers. Therefore, neither case can be upheld as violating qualified immunity, and as neither is upheld, neither can be used as precedent for future cases attempting to break qualified immunity."

    I remember watching a video of just how fucked the arguments are with why qualified immunity is so hard to violate, and it was fucking maddening the whatever the inverse of Catch-22 is.

    DarkPrimusMartini_PhilosopherMatevForar
  • Commander ZoomCommander Zoom Registered User regular
    MorganV wrote: »
    Phoenix-D wrote: »
    Polaritie wrote: »
    Polaritie wrote: »
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

    The decision was pretty much "we are unable to rule because of the lack of Third Amendment jurisprudence."

    ...somehow that's even more cowardice than I was expecting.

    Also circular!

    Hey, it's the basic argument used for qualified immunity.

    "This case where a cop shot a black man for running away while wearing black trainers is different to that case where a cop shot a black man for running away while wearing teal trainers. Therefore, neither case can be upheld as violating qualified immunity, and as neither is upheld, neither can be used as precedent for future cases attempting to break qualified immunity."

    I remember watching a video of just how fucked the arguments are with why qualified immunity is so hard to violate, and it was fucking maddening the whatever the inverse of Catch-22 is.

    I believe Catch-22 is its own inverse. (Fun!)
    Also, yes, I agree. It really just boils down to "we agree that cops are above the law."

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  • monikermoniker Registered User regular
    MorganV wrote: »
    Phoenix-D wrote: »
    Polaritie wrote: »
    Polaritie wrote: »
    That sounds like a violation of the spirit but not the letter.

    Though I want to say under modern jurisprudence that would at least require compensation.

    The decision was pretty much "we are unable to rule because of the lack of Third Amendment jurisprudence."

    ...somehow that's even more cowardice than I was expecting.

    Also circular!

    Hey, it's the basic argument used for qualified immunity.

    "This case where a cop shot a black man for running away while wearing black trainers is different to that case where a cop shot a black man for running away while wearing teal trainers. Therefore, neither case can be upheld as violating qualified immunity, and as neither is upheld, neither can be used as precedent for future cases attempting to break qualified immunity."

    I remember watching a video of just how fucked the arguments are with why qualified immunity is so hard to violate, and it was fucking maddening the whatever the inverse of Catch-22 is.

    I believe Catch-22 is its own inverse. (Fun!)
    Also, yes, I agree. It really just boils down to "we agree that cops are above the law."

    Which is deeply rooted in our history...

    BlackDragon480Martini_PhilosopherCalica
  • MatevMatev Cero Miedo Registered User regular
    Polaritie wrote: »
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

    I swear there was actually a case in the process of coming to the court about Trump somehow violating this in 2019 or 2020....

    "Go down, kick ass, and set yourselves up as gods, that's our Prime Directive!"
    Hail Hydra
    Ringo
  • SiliconStewSiliconStew Registered User regular
    Matev wrote: »
    Polaritie wrote: »
    moniker wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    Though I'll raise hell of I'm forced to Quarter a State Trooper or Guardsman in my house during times of peace...

    When was the last time the 3rd came up in court, anyways? That feels like by far the narrowest statement in the bill of rights.

    I swear there was actually a case in the process of coming to the court about Trump somehow violating this in 2019 or 2020....

    Trump brought thousands of National Guard troops into DC (and elsewhere) in the summer of 2020 to suppress the George Floyd protests and was housing them in area hotels.

    Just remember that half the people you meet are below average intelligence.
    RingoNetscapezepherin
  • HakkekageHakkekage Space Whore Academy summa cum laudeRegistered User regular
    Polaritie wrote: »
    Hakkekage wrote: »
    Polaritie wrote: »
    MrMister wrote: »
    My understanding is that there are two main reasons the 9th amendment is not commonly cited:

    1) There's a reasonable historical argument that the 9th and 10th amendments are purely redundant with the rest of the text--they were included only to reassure some signers that the amendments comprising the bill of rights weren't going to transform the government from one of enumerated powers into one which was allowed to do anything not explicitly contradicted by Amendments 1-8. If that's accurate, there will never be a need to cite the 9th and 10th directly, as all they do is reiterate what is manifest in the original document.

    2) The 9th says nothing about what those rights still reserved to the people are supposed to be, and is therefore procedurally unhelpful. If judges are allowed to find whatever rights they want in the 9th, then the judiciary really is an unelected super-legislature with near-infinite powers. Not that this has always dissuaded judges--as far as I can tell as a non-lawyer, the doctrine of "substantive due process" is just the same as "whatever rights I want, but I claim that they fall under the 14th instead of the 9th." Nonetheless, judges who want to be, or at least be perceived as, not merely imposing their policy preferences may correspondingly want to avoid basing their rulings in tendentious interpretations of the highly indeterminate notion of "rights reserved to the people."

    The 9th is difficult.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

    That said, I do feel that the judiciary is generally in violation of this, because if you say the courts can only recognize rights explicitly named in the constitution you have, in fact, construed the enumeration of some (and not others) in such a way as to "deny or disparage" the rest.

    Unfortunately the only way to be consistent with the 9th is for the judiciary to decide whether a right not enumerated in the constitution exists on its own merits. And if it does, it must be protected equally to those enumerated (because otherwise you've disparaged it). And you may not use it not being enumerated as a rationale. The problem of course is that at this point you basically have nothing to go on, except you must make a decision. Congress could recognize a right by statute, in which case the courts would have a clear argument to hold it equal to those enumerated in the constitution. But beyond that it's basically philosophy in various flavors, which is understandably unappealing to the judiciary. But it's the only thing that satisfies the 9th.

    The 9th Amd is a rule of construction. It is not a substantive rule. It does not create, assign, define, or reserve rights of the people as against the government. It instructs the interpreter not to construe from the enumeration of rights that no other rights are constitutionally protected; that there are rights reserved to the people and the bill of rights should not be read to be an exhaustive list.

    The judiciary is not "in violation" of this when it decides that, for example, there is no unfettered right to contract (as the Lochner era courts insisted there was). The source of most rights you are familiar with today is the 14th Amd, specifically due process and equal protection. Many -- not all -- of the bill of rights (Amds. 1-8) only apply to the states because they have been incorporated through the 14th to the state governments. Otherwise, the rights in the bill of rights only applied as against the federal government and not as against the states.

    When I say I think the judiciary is violating it I mean that they're not following that instruction to them. It doesn't stop the courts from affirming or denying a right, it restricts what grounds they can do so on. An opinion saying the Lochner court was wrong because it's not in the constitution would be in violation. An opinion saying Lochner is wrong because that's absurd is totally fine (with respect to the 9th).

    The conflict I see with holding to it is that it also implicitly means the judiciary can recognize rights beyond those in the constitution, but doesn't provide any guidance for how, which leaves it wide open (and hence more a matter of philosophy). I'd argue that it also means that any such rights must be held as equal to those explicit in the constitution, meaning they can meaningfully restrain Congress (because "or disparage" - though strictly speaking that wouldn't require them to be on the same footing, just not "you have this right but it doesn't matter because it's not in the constitution").

    Basically I think the 9th implicitly grants the courts a lot of leeway to recognize rights as legally protected, but that there's a lot of issues with doing so in practice because it's left wide open what those rights are.

    If we go back to the post I was replying to, I find the first point to be obviously wrong (in regards to the 9th). The second point is broadly correct in that it raises a problem in that it would grant the courts a lot of latitude to overturn things, but it's not like other parts of the constitution aren't regularly interpreted in ridiculously broad fashion anyways (grumble grumble commerce, "neccessary and proper", etc).

    I'll be honest, I'm not sure how I was intended to read your post though, I can't tell if I'm intended to take that as disagreement, correction, etc.

    It’s a disagreement and a correction. There is nothing in the 9th Amendment that requires a court to not just presume the existence of unenumerated rights, but to put them on equal constitutional footing with enumerated rights. There is nothing in the 9th amendment that even hints at the source of these unenumerated rights, whether they are natural rights, fundamental rights, individual rights, or civil rights. There is no case of which I am aware in which the meaning of “or disparage” has been assigned any broader significance in terms of how a court should approach the consideration of unenumerated rights. As long as a court isn’t declaring that the precise rights listed are complete and final, the 9th is satisfied.

    And there are lots of rights beyond the bill of rights that conservatives are OK with (or at least haven’t put on the culture war hit list) that are not expressly recognized: the right to marry; a parent’s right to control the education of their children; paternal rights; the right to a competent attorney in a criminal trial so long as the sentence is more than a year; etc.

    Finally, in West Coast Hotel the SCOTUS literally did say “our bad, “freedom of contract” isn’t actually in the constitution, and it was kind of extravagant of us infer a limitless private right that prevented the government from passing reasonable wage and hour regulations, wasn’t it”
    In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

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    moniker
  • Commander ZoomCommander Zoom Registered User regular
    and then there's the liberty of women over their own bodies, which shall always and only be whatever men allow them.
    :/

    steam_sig.png
    Steam, Warframe: Megajoule
  • monikermoniker Registered User regular
    The 9th Amendment generally strikes me as empowering the Court to require a 'Compelling State Interest' for the Government to do X, which can be argued to deprive people of rights or liberties, rather than doing so for capricious and arbitrary reasons; or just because it's easier and cheaper to do X rather than B and only screws over a minority so c'mon. Which is further bolstered by the 14th, the Administrative Procedure Act, &c.

    Of course, it doesn't actually play out that way when we're talking about brown people rather than white people, but in theory.

  • HakkekageHakkekage Space Whore Academy summa cum laudeRegistered User regular
    moniker wrote: »
    The 9th Amendment generally strikes me as empowering the Court to require a 'Compelling State Interest' for the Government to do X, which can be argued to deprive people of rights or liberties, rather than doing so for capricious and arbitrary reasons; or just because it's easier and cheaper to do X rather than B and only screws over a minority so c'mon. Which is further bolstered by the 14th, the Administrative Procedure Act, &c.

    Of course, it doesn't actually play out that way when we're talking about brown people rather than white people, but in theory.

    No…the 9th Amd is just kind of there. The conceptions of rights requiring evaluation of the government’s deprivation of them on a sliding scale comes from Carolene Products, fn 4, interpreting the 14th amd: https://en.m.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.

    Go to the quote on footnote 4. The analysis is entirely focused on the 14th amd, not the 9th. This is important because the 14th would have the effect of adding rights to the constitution even if the 9th was never included, because it is an amendment, and came after….

    The 9th amd is a sideshow, people.

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  • PolaritiePolaritie Sleepy Registered User regular
    edited May 14
    Hakkekage wrote: »
    moniker wrote: »
    The 9th Amendment generally strikes me as empowering the Court to require a 'Compelling State Interest' for the Government to do X, which can be argued to deprive people of rights or liberties, rather than doing so for capricious and arbitrary reasons; or just because it's easier and cheaper to do X rather than B and only screws over a minority so c'mon. Which is further bolstered by the 14th, the Administrative Procedure Act, &c.

    Of course, it doesn't actually play out that way when we're talking about brown people rather than white people, but in theory.

    No…the 9th Amd is just kind of there. The conceptions of rights requiring evaluation of the government’s deprivation of them on a sliding scale comes from Carolene Products, fn 4, interpreting the 14th amd: https://en.m.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.

    Go to the quote on footnote 4. The analysis is entirely focused on the 14th amd, not the 9th. This is important because the 14th would have the effect of adding rights to the constitution even if the 9th was never included, because it is an amendment, and came after….

    The 9th amd is a sideshow, people.

    I think there's a difference between using the 14th because it's much easier to work with (since it actually says people have the right to equal protection and due process) and saying the 9th doesn't do anything. Your citation doesn't actually mention the 9th at all, and so fails to actually support your conclusion.

    I would say the 14th probably does render the 9th mostly redundant though. Not because the 9th doesn't grant the courts powers, but because equal protection and due process are very open to begin with - it's very easy to cast just about any form of injustice as a violation of one or both (the question of how much should be allowed under those is a different discussion). Mostly redundant, because while the broad implicit power is more or less replicated by the explicit protections of the 14th, the explicit prohibition remains (not that any half-decent writer should have an issue working around it, but)

    Polaritie on
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  • Phoenix-DPhoenix-D Registered User regular
    Hakkekage wrote: »
    moniker wrote: »
    The 9th Amendment generally strikes me as empowering the Court to require a 'Compelling State Interest' for the Government to do X, which can be argued to deprive people of rights or liberties, rather than doing so for capricious and arbitrary reasons; or just because it's easier and cheaper to do X rather than B and only screws over a minority so c'mon. Which is further bolstered by the 14th, the Administrative Procedure Act, &c.

    Of course, it doesn't actually play out that way when we're talking about brown people rather than white people, but in theory.

    No…the 9th Amd is just kind of there. The conceptions of rights requiring evaluation of the government’s deprivation of them on a sliding scale comes from Carolene Products, fn 4, interpreting the 14th amd: https://en.m.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.

    Go to the quote on footnote 4. The analysis is entirely focused on the 14th amd, not the 9th. This is important because the 14th would have the effect of adding rights to the constitution even if the 9th was never included, because it is an amendment, and came after….

    The 9th amd is a sideshow, people.

    Which is sort of what we're complaining about?

    moniker
  • enc0reenc0re Registered User regular
    The 9th (should) prevents a Cicero-style exception that proves the rule argument when it comes to government power. For that reason, it’s my favorite amendment out of the bill of rights.

    For example, in my amateur opinion, it precludes us from using the 5th “ No person shall be held to answer for a capital […] crime, unless […]” to argue that the government has the power to impose the death penalty. We have to find the basis for that power somewhere directly, not in its exception.

    Goumindong
  • Lord_AsmodeusLord_Asmodeus goeticSobriquet: Here is your magical cryptic riddle-tumour: I AM A TIME MACHINERegistered User regular
    edited May 14
    I feel like the answer of what to do when the court loses all public legitimacy and you can't fix it via normal routes is ignore them and pretend they don't exist, and go to the next highest court for those kinds of decisions if you think the whole "Judges deciding constitutionality" thing is still reasonable.

    It's not a great answer, there isn't really any legal framework for it, but I feel there's no many great options if the Democratic party is unable or unwilling to correct the Republican orchestrated imbalance in the SC. Because as said previously, people are just going to start John Marshalling the Supreme Court and there's kind of fuck and all they could do about it in places where people don't agree with them.

    Lord_Asmodeus on
    Capital is only the fruit of labor, and could never have existed if Labor had not first existed. Labor is superior to capital, and deserves much the higher consideration. - Lincoln
  • HakkekageHakkekage Space Whore Academy summa cum laudeRegistered User regular
    Polaritie wrote: »
    Hakkekage wrote: »
    moniker wrote: »
    The 9th Amendment generally strikes me as empowering the Court to require a 'Compelling State Interest' for the Government to do X, which can be argued to deprive people of rights or liberties, rather than doing so for capricious and arbitrary reasons; or just because it's easier and cheaper to do X rather than B and only screws over a minority so c'mon. Which is further bolstered by the 14th, the Administrative Procedure Act, &c.

    Of course, it doesn't actually play out that way when we're talking about brown people rather than white people, but in theory.

    No…the 9th Amd is just kind of there. The conceptions of rights requiring evaluation of the government’s deprivation of them on a sliding scale comes from Carolene Products, fn 4, interpreting the 14th amd: https://en.m.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.

    Go to the quote on footnote 4. The analysis is entirely focused on the 14th amd, not the 9th. This is important because the 14th would have the effect of adding rights to the constitution even if the 9th was never included, because it is an amendment, and came after….

    The 9th amd is a sideshow, people.

    I think there's a difference between using the 14th because it's much easier to work with (since it actually says people have the right to equal protection and due process) and saying the 9th doesn't do anything. Your citation doesn't actually mention the 9th at all, and so fails to actually support your conclusion.

    I would say the 14th probably does render the 9th mostly redundant though. Not because the 9th doesn't grant the courts powers, but because equal protection and due process are very open to begin with - it's very easy to cast just about any form of injustice as a violation of one or both (the question of how much should be allowed under those is a different discussion). Mostly redundant, because while the broad implicit power is more or less replicated by the explicit protections of the 14th, the explicit prohibition remains (not that any half-decent writer should have an issue working around it, but)

    That’s THE POINT, the extremely famous and foundational conception of standards of review for the deprivation of certain rights is grounded in the 14th, not the 9th! The 9th is irrelevant! There is no basis to imagine otherwise.

    The 9th does not tell courts or the government how to approach laws touching on rights guaranteed by the constitution, enumerated or not. It doesn’t do anything but say, don’t make the mistake of presuming from the fact of a list of rights that this is all there is. That’s it.

    There is nothing supporting this claim that “it’s easier to use the 9th than the 14th”. They’re completely different, like I already explained the 9th only applied to the federal government like all the rest of the bill of rights. The 14th is the SOURCE of rights enforceable against both the federal AND state government. It was a radical transformation of every amendment that preceded it and contains not just affirmative grants of rights but (as some scholars have argued) higher principles of equality and individuality that have gone back and amended each of the first 10 amendments as well (hence why courts have ruled that the 5th amendment’s due process guarantee includes an equal protection right as against the federal government along the same lines as the 14th, although Thomas famously thinks that’s a judicial invention that should be abolished).

    The Wikipedia page in this case is also a good summary of how little traction any effort to ascribe legal significance to the 9th has gotten either in the courts or among scholars because there is simply no there there: https://en.m.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution

    This is not a situations like, for example, when the reconstruction Supreme Court decided that the “privileges and immunities” clause didn’t mean anything at all in the 14th. Again the 14th is a source of substantive rights. The 9th is a rule of construction. There is no convincing argument that it can, should, or ever did support anything more than that.

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  • TetraNitroCubaneTetraNitroCubane The Djinnerator At the bottom of a bottleRegistered User regular

    Justice Clarence Thomas: "I think we are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society without a stable legal system...There was such a belief in the rule of law, belief in the court…"
    zJmvGHG.png

    VuIBhrs.png
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  • enlightenedbumenlightenedbum Registered User regular
    Also can't have one without peaceful transfers of powers, but the troll won't discuss that one.

    Herbert Hoover got 40% of the vote in 1932. Friendly reminder.
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  • monikermoniker Registered User regular

    Justice Clarence Thomas: "I think we are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society without a stable legal system...There was such a belief in the rule of law, belief in the court…"
    zJmvGHG.png

    Belief in not having your wife conspire to overthrow the government in a coup...

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  • Commander ZoomCommander Zoom Registered User regular
    Yes, sir, you are. And you've been doing exactly that for some time.

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  • No-QuarterNo-Quarter Nothing To Fear But Fear ItselfRegistered User regular

    Justice Clarence Thomas: "I think we are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society without a stable legal system...There was such a belief in the rule of law, belief in the court…"
    zJmvGHG.png

    Fuck this disgusting hypocrite.

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  • Marty81Marty81 Registered User regular
    Justice Clarence Thomas: "I think we are in danger of destroying the institutions that are required for a free society.

    Yes. Yes you are.

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  • jungleroomxjungleroomx It's never too many graves, it's always not enough shovels Registered User regular
    edited May 14

    Justice Clarence Thomas: "I think we are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society without a stable legal system...There was such a belief in the rule of law, belief in the court…"
    zJmvGHG.png

    The lack of self awareness in this is just

    If there was a Guinness world record for oblivious irony, here we are

    jungleroomx on
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  • enlightenedbumenlightenedbum Registered User regular
    Bonus points that the dude interviewing him is the war criminal John Yoo.

    Herbert Hoover got 40% of the vote in 1932. Friendly reminder.
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  • DoodmannDoodmann Registered User regular
    Bonus points that the dude interviewing him is the war criminal John Yoo.

    "Advanced Interrogation" and "unitary executive" John Yoo?

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  • ArcTangentArcTangent Registered User regular
    Man, if you think that's bad, don't listen to any other part of the interview.

    Thomas refers to people protesting their RvW decision as throwing temper tantrums, he praises Garland being blocked for a year, and calls the leak tantamount to infidelity between the sacred bond between justices.

  • FencingsaxFencingsax It is difficult to get a man to understand, when his salary depends upon his not understanding GNU Terry PratchettRegistered User regular
    Doodmann wrote: »
    Bonus points that the dude interviewing him is the war criminal John Yoo.

    "Advanced Interrogation" and "unitary executive" John Yoo?

    The very same

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  • MorganVMorganV Registered User regular
    Fencingsax wrote: »
    Doodmann wrote: »
    Bonus points that the dude interviewing him is the war criminal John Yoo.

    "Advanced Interrogation" and "unitary executive" John Yoo?

    The very same

    So, a petty asshole with an overinflated self-importance who wilfully misreads and twist the law to cause real harm and potentially death to people he doesn't like, speaks to... a second one.

    DoodmannMartini_PhilosopherForar
  • AngelHedgieAngelHedgie Registered User regular
    ArcTangent wrote: »
    Man, if you think that's bad, don't listen to any other part of the interview.

    Thomas refers to people protesting their RvW decision as throwing temper tantrums, he praises Garland being blocked for a year, and calls the leak tantamount to infidelity between the sacred bond between justices.

    And people wonder why I call it omerta.

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  • Munkus BeaverMunkus Beaver You don't have to attend every argument you are invited to. Philosophy: Stoicism. Politics: Democratic SocialistRegistered User, ClubPA regular
    Fuck Clarence Thomas that total piece of shit.

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  • DoodmannDoodmann Registered User regular
    It's honestly hard to say which of the two of them have done more damage to this country.

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  • enlightenedbumenlightenedbum Registered User regular
    Doodmann wrote: »
    It's honestly hard to say which of the two of them have done more damage to this country.

    The lack of consequences for either of their wrongdoing is the correct third option.

    Herbert Hoover got 40% of the vote in 1932. Friendly reminder.
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  • tbloxhamtbloxham Registered User regular
    As I've said before. They should be obliged to release every draft opinion at the end of every month. Full transcripts of all conversations. And full, redacted for security, emails at the end of each year. This would include personal communications.

    They should be paid at the 90th percentile for Washington DC, for them and their partner, but denied all other income, or any access to any funds of any kind.

    Want to be unelected king? Then I get to see your dirty laundry and your job should be very irritating. Don't like it? Quit after a few years.

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  • MorganVMorganV Registered User regular
    tbloxham wrote: »
    As I've said before. They should be obliged to release every draft opinion at the end of every month. Full transcripts of all conversations. And full, redacted for security, emails at the end of each year. This would include personal communications.

    They should be paid at the 90th percentile for Washington DC, for them and their partner, but denied all other income, or any access to any funds of any kind.

    Want to be unelected king? Then I get to see your dirty laundry and your job should be very irritating. Don't like it? Quit after a few years.

    They'd still engage in political fuckery, because it's a power trip for them (or like Ginni, they're nuts). Money's just the easiest way to keep score, but not the only way.

    Speaking to large crowds who adore you has it's appeal to some. I mean, look at Trump. It's like an addiction.

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  • Dark_SideDark_Side Registered User regular
    edited May 14
    I've stopped getting angry at Thomas at this point because he's literally just going out and trolling Americans now. I really wish the liberals on the court would go on the offensive and do some interviews/speeches of their own.

    Dark_Side on
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  • shrykeshryke Member of the Beast Registered User regular
    Dark_Side wrote: »
    I've stopped getting angry at Thomas at this point because he's literally just going out and trolling Americans now. I really wish the liberals on the court would go on the offensive and do some interviews/speeches of their own.

    I think Alito is still the bigger troll. He'll like go out and give a speech on why someone criticizing him on twitter was wrong and then cite that in an opinion.

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  • GoumindongGoumindong Registered User regular
    Doodmann wrote: »
    Bonus points that the dude interviewing him is the war criminal John Yoo.

    "Advanced Interrogation" and "unitary executive" John Yoo?

    And also, somehow, “fuck QI” John Yoo yes.

    wbBv3fj.png
    Doodmann
  • monikermoniker Registered User regular
    SCOTUS further legalizes obviously brazen bribery and corruption
    CNN wrote:
    The Supreme Court on Monday ruled in favor of Republican Sen. Ted Cruz of Texas in a case involving the use of campaign funds to repay personal campaign loans, dealing the latest blow to campaign finance regulations.

    The court said that a federal cap on candidates using political contributions after the election to recoup personal loans made to their campaign was unconstitutional. Chief Justice John Roberts wrote the 6-3 decision. Justice Elena Kagan wrote the dissent for her liberal colleagues, Justice Stephen Breyer and Justice Sonia Sotomayor.

    "The question is whether this restriction violates the First Amendment rights of candidates and their campaigns to engage in political speech," Roberts wrote. He said there is "no doubt" that the law does burden First Amendment electoral speech. "Any such law must be at least justified by a permissible interest," he added, and the government had not been able to identify a single case of so-called "quid pro quo" corruption. Roberts concluded that the "provision burdens core political speech without proper justification."

    https://www.cnn.com/2022/05/16/politics/supreme-court-campaign-funds-ted-cruz/index.html

    Gee, I wonder why people are losing faith in the Supreme Court's wisdom...

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  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    Hey, you've got to be rich enough to front the bribe amount first. That makes it okay, I guess?

    Also a decision I haven't read yet but seems to say you can't appeal immigration administrative decisions in the courts at all.

    Party of small government there.

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  • PolaritiePolaritie Sleepy Registered User regular
    Hey, you've got to be rich enough to front the bribe amount first. That makes it okay, I guess?

    Also a decision I haven't read yet but seems to say you can't appeal immigration administrative decisions in the courts at all.

    Party of small government there.

    Notably, the federal government wasn't even trying to defend the lower ruling here. This is just five of the six conservatives being their usual asshole selves.

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  • ArcTangentArcTangent Registered User regular
    edited May 16
    It's worse and stupider than you think.

    The opinion says that there's no reason for a losing campaign to have any restrictions on contributions.

    So if you win, you have to 'obey' the FEC regulations... by which we mean MAYBE have to pay a fine. But still get the power and position.

    If you cheat and lose, no harm, no foul.

    ArcTangent on
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