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October 01, 2008

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A clause within a clause by judicial fiat.

Maybe Palin is contagious? Maybe in sympathy with McCain, Ponnuru refuses to be comfortable using The Google?

A clause within a clause by judicial fiat.

Damn those judges and their literacy!

I know that no one can be wrong every time, but Ramesh sure seems to be trying to make a run at it, doesn't he?

Thank you. I was just trying to figure out how to vent my irritation over this. Sending him an email would be worse than useless.

It's the the due process clause, folks. There is no separate, hidden "liberty clause" burried within the due process clause possessing substantive meaning, no matter how many cases Publius cites. All his citations prove is that courts/judges are often lawless.

I'm so disappointed in you, Publius: more gotcha journalism.

It's the the due process clause, folks. There is no separate, hidden "liberty clause" burried within the due process clause possessing substantive meaning, no matter how many cases Publius cites. All his citations prove is that courts/judges are often lawless.

This reminds of the folks of complaining about the use of "they" for third person singular, even after you point out its use by Shakespeare.

There ain't no sannitty clause.

feddie - there may well be a good debate about that, but that's not at all what he meant.

he was ridiculing biden for even suggesting such a crazy notion.

"All his citations prove is that courts/judges are often lawless."

Darn the legal system for being lawless!

gwangung--

"Quite a number of people also describe the German classical author, Shakespeare, as belonging to the English literature, because--quite accidentally born at Stratford-on-Avon--he was forced by authorities of that country to write in English."
(from the _Deustcher Weckruf und Beobachter_, circa 1940.)

can anyone, like, CALL Ponnuru, point this out to him, and say "Wow, I guess you're a total arrogant dumbass, aren't you?"

Well, to my untrained brain, since the States can't deprive anyone of liberty without due process, it must follow that the person had liberty before the due process began.

Is it possible that Ramesh was auditioning to be Palin's press secretary after she is elected VP?

Department of That Silly McCain: turns out Rick Davis and Davis, Manafort have also taken a lot of money from Russian interests that follow the Kremlin line.

At this point, it seems a safe bet that whatever McCain likes he claim he's against, Rick Davis has taken money to be for.

tomeck-

Yes, but the point of the clause is not to define all of our various and sundry liberties. It is simply to require that before your liberty can be taken away, there must be process.

Also, and this is going to get into law-nerd territory, the meaning of "liberty" as used in the DPC at common law was that of physical restraint. So, even if one were inclined to pour substance into the DPC, that substance would be fairly limited in scope. Although if one is inclined to ignore the original/plain meaning of the clause's text, then I suppose one won't feel constrained by the common-law history underlying the text either.

That's probably more than you care to know.

tomeck, I'm afraid that doesn't follow. You might have had the terrorists sneak off with your liberty last Sunday, and then the government can do whatever it wants to you because no action of theirs will deprive you of any liberty. Bonus!

There is a privacy clause in the third amendment?????!!!!!!!

The only amendment that has never been violated. No English soldier has forced himself into an American's home since the revolution.

No liberty clause (huh!) despite the explicit use of the word liberty in the 5th and 14th Amendments.

No more conservative action hires for wingnuts please. The stupid does not just burn but gives me agita.

conservative affirmative action hires that should be.

feddie knows his stuff on this, but he's mixing up "is" with "ought." we can argue all day about what should be.

But there HAS been a liberty clause/interest/right for nearly 100 years stretching back to pierce. you may hate it, but it's true -- and courts refer to it as such.

ponnuru (who i actually enjoy reading) spoke without having a clue what he was talking about here

right -t he other thing ponnuru does is to completely redefine "right of privacy" to mean something that no one ever uses it for

Defending Palin, Ponnuru also says (yes, I clicked through, and teh stupid does indeed burn):

There is nothing incompatible with either a pro-life point of view or originalism with saying that the Constitution protects privacy.

Nevermind that shorter "originalism"="don't buy that right to privacy crap."

Publius-

Pierce was correctly decided, but should have been grounded on the Ninth Amendment.

And with that, I am off to bed.

Gocart, you overstate and thereby overlook the war of 1812. I don't know if there was any forced quartering (though it seems a safe bet there was some, if only for a single night in one place), but British soldiers did invade at least one prominent American home.

The wingnuts are working themselves up into quite a frenzy over Ifill (maybe they'll take up Don Imus's name for her). I've been fighting a bit against the attempt to push and expand the book "story" in five or six election-related Wikipedia articles. I hope Ifill has her countertops in order.

So if Ifill doesn't want her life to be hell, she won't ask any followups. And if Palin screws up anyway, Ifill's life will still be hell. All future debates will have to have Malkin-approved moderators or be drowned out by screeching monkeys.

Hmmm, my complaint is that there isn't a liberty clause; there is a life, liberty and property clause. Liberal judges seem to think that the property part of the unitary clause doesn't deserve to be taken as seriously as the other two parts. ;)

(Sort of tongue in cheek)

Apparently Ifill is guilty of living in federally subsidized housing at one point in her childhood as well as being over 50 and unmarried, and she got her first job in journalism only because someone wrote a racially offensive note to her when she was an intern and the newspaper was afraid she would sue. Presumably new horrors will be dredged up tomorrow and Friday.

Memo

From: Gwen Ifill
To: Debate Participants
Subject: My Life in Hell

FU and the moose you rode in on. Expect followup questions.

Doretta, apparently the Palinites have calculated that getting a head start on the excuse making is worth annoying the moderator before the debate.

gocart mozart said: "The only amendment that has never been violated."
The 3rd amendment applies to the US government. There was a case not long ago where a soldier was transferred to a base in his hometown. He was eligible for a housing allowance, IIRC, but the commanding officer told him he should stay with his parents. His father didn't take well to this and filed a suit claiming a violation of the 3rd amendment, and won.

So, Jon Stewart (the best interviewer on TV) had the unbearably unctuous Peggy Noonan as his guest tonight. Oozing self-importance, Noonan decried the "small-bore" nature of the campaign "on both sides". Stewart, in his polite, funny, but tenacious manner, was having none of it. Why, asked Stewart, do the Republicans keep talking about "appointing judges who will not legislate from the bench"? Do they think we're children? We all know that's just code for judges who will try to overturn Roe v. Wade. I can respect Sarah Palin's position on abortion, said Stewart, but why can't we discuss these things straight-up, instead of pretending we're talking about something else? Noonan responded by touting her book. (Has everybody got a book to sell nowadays?) Stewart brought it back to Republican code-talk about "small town values" and explained to Peggy that New York City is a bunch of small towns stacked up in the same building. I grow more and more convinced that what this country needs is a Presidential debate moderated by Jon Stewart.

Naturally, I had to watch Colbert, too. He was on fire tonight. Sample: Sarah Palin can see Russia from Alaska, but the International Date Line runs through the Bering Strait, so Sarah Palin can also see the future. Then he did a great bit equating first-time voting with the loss of virginity, culminating in a public-service message (approved by John McCain) with the tag line, "If you're old enough to vote, you're old enough not to." The rueful voter who laments "wasting his first time on Dukakis" was priceless. Colbert's guest in the last segment was the founder of KIPP. Lo and behold: the rare TV guest without a book to sell.

Before turning off the TV, I flipped over to C-Span, and found myself in the middle of a replay of the 1992 VP debate. Gore, Quayle, Stockdale. Lord save us, the GOP talking points -- and the Democratic proposals they are aimed at -- have not changed in all this time. Quayle was definitive: Clinton-Gore will raise your taxes. Gore was clear: we want tax cuts for the middle class; we only want to raise taxes on those making over $200K a year. Obama is Clinton adjusted for inflation, I guess.

Interestingly, abortion actually was discussed openly in that debate. Gore tried to pin Quayle down by repeatedly asking him to say the words "I support a woman's right to choose". Quayle wouldn't, of course, but I was struck by the absence of rhetoric from him about judges legislating from the bench. Had the GOP not fully evolved their word-code back then?

Incidentally, Gore was a sharp, witty guy in that debate. Quayle was actually articulate. Even that year's laughing-stock, poor old Admiral Stockdale, was clear and concise at times: "I think a woman owns her body, and what she does with it is her business. Period."

Usually, I scoff at the popular notion that America is going downhill, but after the 90 minutes of TV pot-pourri I just described, maybe I need to rethink my optimism.

--TP

TP - it's funny you say that about the repeating of the tax themes, etc. I watched the nixon/kennedy debate on cspan once and was struck at how similar it was to modern debates.

kennedy was the tax-raising, foreign policy weakling, just like every other Dem. It was defiinitely interesting to see how little had changed.

Hmmm, my complaint is that there isn't a liberty clause; there is a life, liberty and property clause. Liberal judges seem to think that the property part of the unitary clause doesn't deserve to be taken as seriously as the other two parts. ;)

(Sort of tongue in cheek)

I absolutely agree that civil forfeiture is outrageous but I think you might have a problem with your memory if you're blaming liberal judges.

Freddie, I'm failing to grasp your argument here. Clearly there is a clause in the 14th ammendment that contains the word "liberty." As Publius demonstrates, it has been referred to by multiple sources as "the liberty clause" in the past. When you hear Biden talk about the "liberty clause" you know precisely the words to which he is referring. To the extent that language is intended to communicate ideas (rather than codify rules), I think this should be rather painfully clear-cut.

Reading the transcript of this VP debate from 1992, by the way, Admiral Stockdale doesn't even mention that he was a POW for over 7 years.

Possibly because he felt he'd accomplished things in his life since such that the years he spent as a prisoner were not the largest accomplishment of his life.

Liberal judges seem to think that the property part of the unitary clause doesn't deserve to be taken as seriously as the other two parts. ;)

And conservative judges think the life part doesn't deserve such. Durrr hurrr hur.

"It was defiinitely interesting to see how little had changed."

You can go back far far longer. These were the same themes used against Truman, and FDR, and by Hoover and Coolidge. Prior to Truman, though it wasn't being a foreign policy weakling, but someone who would get us into war and entangle us in Europe; there was a flip there. Domestically, though, it was still evil tax-raising, regulating, Democrats. That was a legacy of not just anti-FDR Democratism, but Wilsonism, who passed the income tax in the first place.

Teddy Roosevelt vs. Woodrow Wilson mixed things up in a rather different mix, and with William Jennings Bryan, there's the populism, but somewhat different issues -- we don't care about the gold standard and "free silver" any more. The 19th century also becomes less similar as we go back, but one can still find the thread of monied interests versus the people, certainly, back to at least Andrew Jackson.

KCinDC: Doretta, apparently the Palinites have calculated that getting a head start on the excuse making is worth annoying the moderator before the debate.

Exactly. The objective has been accomplished though. She now has to bend over backwards to appear to be impartial. Any hint that she’s going after Palin or taking it easy on Biden will only work to the benefit of Palin. Mission accomplished.

OTOH, pretend for a moment that the moderator was from a (perceived) right-leaning news organization with a book (perceived to be) supportive of John McCain set for release on Inauguration Day (which they failed to disclose to the CPD). Pretend said moderator was perceived to have reacted negatively to Biden’s DNC speech. There would have been at least three front page posts on it here by now with a hundred people ranting about it in comments. Just sayin’.

...and OCSteve lets us know what the loyal Republican is bloviating about this season. *yawn*

Palin seems confused about "liberty," while Biden seems confused about "clause." On the whole, I'd prefer Biden's error.

Palin seems confused about "liberty," while Biden seems confused about "clause." On the whole, I'd prefer Biden's error.

Possibly because he felt he'd accomplished things in his life since such that the years he spent as a prisoner were not the largest accomplishment of his life.

Probably he just had enough integrity to believe in the traditional military idea that it's not honorable to publicly boast about your service, particularly if you're using it for your benefit.

I'm with Feddie. The "strict interpretation" wingnuts demand that only rights explicitly defined in the Constitution exist. It's exactly this kind of totalitarian attitude that the Founders were afraid of when they made the 9th Amendment part of the original Bill of Rights in 1791: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

It's my understanding that MANY legal scholars who agree that Roe vs. Wade was correct in finding an inherent "right to privacy", believe that it was a mistake to base it on the 14th Amendment, rather than the 9th.

But the gotchas from both sides are getting pretty silly, since neither Biden nor Palin is claiming to be a Constitutional scholar.

Biden gave a persuasive explanation of the rationale for giving the State more say in protecting the life of the fetus as pregnancy progresses, which is much more important than the footnote as to which amendment is the source for the right to privacy.

The fact that Palin couldn't come up with a specific amendment other than Roe v. Wade is not a huge "gaffe". What WAS a gaffe was her unwillingness to admit that off the top of her head, she couldn't think of a particular decision other than Roe v. Wade that she disagreed with.

Palin has apparently been spouting bafflegab bulls*t since high school, and never before has she been called on it, so apparently she just can't keep her mouth shut. Like Poohbah in the Mikado, she repeatedly puts her foot in her mouth by adding "corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative."

Wilsonism, who passed the income tax in the first place.

Actually, the income tax was first enacted by a Republican Adminstration--Lincoln's It was declared unconstitutional in 1895, on very dubious grounds. The 16th Amendment, ratified in 1913, was backed by rural and agricultural interests, who feared a potential federal property tax, the only other feasible alternative for raising the additional revenues needed to fund the federal government at early 20th Century levels.

If we acknowledge that Ponnoru is simply flat out lying for the sake of the children, over at NRO, when he tries to obfuscate Palin's answer by attacking Biden what are we to make of Sebastian's "tongue in cheek" accusation that "liberals" don't defend property rights when, as vaux rien points out, this has it exactly backwards? I know its considered so un obi wi to actually hold posters accountable for the content of their posts, though one often receives a storm of meta criticism for the style of one's posts, but really--a lie is a lie is a lie. The big seizure cases have almost entirely been at the behest of big, republican, business concerns, done by conservative lawyers and judges, with the help of a republican administration. And don't get me started on things like the right to die cases and the medical marijuana cases. There is zero evidence that there is, or ever has been, a principled pro-liberty stance on the right side of the aisle *whether* you are talking about life, liberty, health, property, or anything else.

aimai

There's a wonderful "we've always been at war with Eurasia" quality both to Ponnuru's response to the Biden and Palin interviews and to the many right-wing pundits' attempts at denying that there was ever such a thing as the Bush Doctrine.

Of course on Orwell's Airstrip One, anonymous workers like Winston Smith are responsible for generating this sort of "information" at Minitrue.

Appropriately enough, our conservative movement has largely privatized this function, forcing individual pundits to issue the denials.

Ponnuru was the same fellow who assured us that Wasilla was a medium-sized metropolis with a population to rival the entire state of Delaware. Guy went to Princeton, so it must be true.

[i]There would have been at least three front page posts on it here by now with a hundred people ranting about it in comments. Just sayin’.
[/i]

Just like there were when Obama went on O'Reilly -- possibly the third or fourth most hostile mainstream outlet he could visit, after Hannity, Limbaugh and maybe Hewitt -- even though Palin can't even be bothered to even do a serious press conference with, say the NYT, the LAT and USA Today, right?

Oh, wait. That NEVER HAPPENED.

Some day I'd like a *strict constructionist* to show me where in the Constitution it says that corporations (or unions for that matter) have rights.

Ben Alpers: on Bible Spice's response to Couric's Bush Doctrine question, there's an interesting bit of comment/analysis here:

http://www.youtube.com/watch?v=NR_JFpD02D0


The guy in the clip recommends that she find an excuse to pull out og the debate!!

But I've seen a bit of comment suggesting that Palin's ignorance may come over as 'refreshing'.

It'll be interesting to see how her 'unpretentious' lack of competency plays out among the great masses / independents.

I mean, some pundits criticise Obama for being too cool and intellectual - I guess by that logic someone who is anti-intellectual (or comes across that way) might appeal to a lot of independent voters?

Pretty high risk strategy going into a live debate tho - play dumb and hope the public love you for it!

No, Feddie, your explanation was not more than I want to know since I don't mind learning things once in a while. Thanks for the note. Anyway, I wouldn't mind hearing from some of the legal scholars around here if "liberty" doesn't mean more than not being incarcerated.

Ponnuru, I presume, is not a lawyer. Biden is. Nonlawyers would do well not to correct lawyers about the law.

Just to review:

Palin agreed, contra probably every other Christian conservative in America, that Roe's "cornerstone" right to privacy exists.

And we're supposed to believe that what really "concerns" Ponnuru is Biden's nomenclature.

Michael: Palin agreed, contra probably every other Christian conservative in America, that Roe's "cornerstone" right to privacy exists.

Actually, thoughtful Christian conservatives base their legal/activist support of forced pregnancy on "the personhood of the fetus". That way they can retain a right to privacy for themselves, while at the same time allowing the government to have access to women's bodies/women's personal lives.

Also, like most women who assert they support forced pregnancy, Palin turns out to believe in the right to choose when it's her daughter or herself that right applies to.

"Liberal judges seem to think that the property part of the unitary clause doesn't deserve to be taken as seriously as the other two parts. ;)

And conservative judges think the life part doesn't deserve such. Durrr hurrr hur."

Hey if we had mandatory appeals and constant appellate court review of nearly every single property taking case I'd be thrilled.

Vaux-rien: You're over-relying on 3rd party charts if you think that US v. James Daniel Good Real Property helps you much. (Hint, ruling of the Court as to disposition was unanimous, and as to parts I and III).

And worse it appears from that case that 100% of the Court believes that seizure of personal property does not require a pre-seizure hearing, the only split is whether real property (land/house) requires it.

And there is a long line of Lake Tahoe cases which you are pointedly ignoring.

Also you might want to look into the Court lineup in Kelo, a recent case of some note which has a rather interesting view of the ease of taking property (shorter Court, if the State authorizes it, it is OK). Welcome to standards of review that don't protect anything whatsoever.

Way to keep those Constitutional rights from getting out of hand! Stevens, Kennedy, Souter, Ginsburg, Bryer, for those who don't follow the link.

Re Biden's answer: compared to anyone else that is a C+ answer at best.

He is wrong about the 2nd trimester completely: "And the second three months, where Roe v. Wade says, well then the state, the government has a role, along with the women's health, they have a right to have some impact on that."

He is misleading at best with respect to the 3rd: "And the third three months they say the weight of the government's input is on the fetus being carried" isn't right. At best Roe says that government can consider fetal interests. He makes it sound like they must.

Then his answer on unenumerated rights just looks silly if you take in to consideration his view on actually enumerated rights (2nd Amendment Mr Biden?).

Of course compared to Palin he looks freaking brilliant. Her answer is "blah, blah, blah, I can't even get the obvious talking points right".

Sebastian: (2nd Amendment Mr Biden?).

Ooh, another good reason to like Biden - he's got an "F" rating from the deathmongering NRA. ;-)

More seriously:

He is wrong about the 2nd trimester completely: "And the second three months, where Roe v. Wade says, well then the state, the government has a role, along with the women's health, they have a right to have some impact on that."

He is misleading at best with respect to the 3rd: "And the third three months they say the weight of the government's input is on the fetus being carried" isn't right. At best Roe says that government can consider fetal interests. He makes it sound like they must.

I would guess that Biden, not being a pro-life wingnut, is responding in line with what abortion legislation in most states actually says.

I'm stunned that nobody has mentioned the really, really huge elephant in the room here.

Biden had some clue what he was talking about. He knew cases, he knew concepts, he knew what he was talking about. You might or might not agree with him, but he was able to make some coherent points about the Constitution, and he clearly understood the background.

Palin had very clearly never even had a single conversation about any of this. Nobody with any knowledge AT ALL about the situation could insist there is a fundamental constitutional right to privacy but that abortion should be insisted on a state-by-state basis. It is a hideous embarrassment of an answer that would get her an F on any high-school civics test.

I understand the McCain/Palin objective re: Ifill.

My point is that it's another roll of the dice with a significant downside and it's entirely possible the numbers will come up bust.

I don't know Ifill's work but if she's even moderately skilled she may well be able to do significant damage without looking biased and they've just given her tremendous motivation to do so.

It's not like she'd have to go all hardball on Palin. The Couric interviews suggest that all she'd have to do is keep asking questions of both candidates like "Can you give us an example?" Biden will have no problem with those questions but has Palin improved enough not to disintegrate?

The campaign can try to spin that as a result of moderator bias but at some point that becomes so transparent to anyone who isn't already a true believer that even the attempts at spin become a liability. It may still play well to their base but it appears to me that it's been costing them with both swing voters and the media lately. I haven't heard anyone outside the wingnutosphere blame Katie Couric for Palin's difficulties in those interviews.

It may be that Palin will do much better in the debate. They've been airing the stuff with Couric over time and that makes Palin look as though she hasn't learned a thing but those questions we saw yesterday for the first time weren't actually asked yesterday.

If Palin does well, they'll just drop the smearing of Ifill but it might cost them something with some of the media even in that case.

[I really should know better than to get into this, but I just can't help myself.]

Let's start with the idea of originalism. It is based on the purportedly "neutral" theory that the intended goals of a small fraction of the adult population in 1776, including upholding slavery, should control the interpretation of the Constitution today. This theory is supposed to "constrain" judges and prevent a "tyranny" of the judiciary.

yah, right. We can't agree on the impact of the New Deal on the Depression, and that was within living memory. Does anyone really think that the historical record is so perfectly clear that it can effectively serve to constrain judicial interpretation? Let me introduce you to Judge Scalia and his 11th amendment and Commerce Clause jurisprudence.

Also, you'd think that since the Constitution was remade after the Civil War that we could at least re-date the originalism period to the 1860's, but apparently no.

I love the comment that judges can be lawless. It so perfectly encapsulates modern conservative thinking. Instead of recognizing that reasonable people can differ, it just attacks the very existence of one leg of our tripod form of government. No, judges don't over-reach or use poor logic; they are lawless.

How does Feddie know? God knows.

doretta, I'm biased, and maybe I'm just flat wrong. But I felt that in the 2004 debate Ifill chaired she aided the Republican. Even if I'm right, I'd be crazy to impute motive, as I could never know whether it was overcompensation in aid of fairness, personal bias, or political bias. And I reiterate that I could well be flat wrong to believe that she tilted rightward in the 2004 debate. But I don't think I was the only person to get that impression.

Also you might want to look into the Court lineup in Kelo, a recent case of some note which has a rather interesting view of the ease of taking property

Well, it was the same view that the Supreme Court has upheld for the last 150 years. Whether or not that makes it 'interesting' is, I suppose, a matter of taste.

Kent: I'm stunned that nobody has mentioned the really, really huge elephant in the room here.

If you recall the 2004 campaign, it ended up being all about how awful Kerry's military and post-military career had been - nitpicking his time in Vietnam, the circumstances under which he'd been awarded his medals, how effective he'd been as a leader on the Swift Boats, how awful it had been that after he'd served in Vietnam he'd opposed the Vietnam War and supported Vietnam vets who spoke out against US military atrocities in Vietnam.

While the really, really big elephant in the room - that George W. Bush had got into a cushy berth by family influence, then failed to carry out the flight duties required after the air force imposed mandatory drug testing, to the point where it can literally be said that he deserted - was made unspeakable in the mainstream.

In 2000, until the Florida debacle, the really big elephant in the room was that throughout the 2000 campaign Bush and his campaign team lied their asses off, while Al Gore was being spun by the media as a chronic fabulist. (After the Florida debacle, even the media spin on Gore as chronic fabulist was dwarfed by the media spin that Bush had won and Gore was a sore loser.)

There is always a really, really big elephant in the room.

And it's very seldom discussable.

Everyone knows Sarah Palin was barely qualified to be Mayor of Wasilla, and failed at being Mayor (ran her town into debt, etc). She was absolutely unqualified to be governor of Alaska. If there were a lowerlative below "absolutely unqualified", she would be that for Vice President of the United States.

But she's got a good chance of being President by 2012, given the US electoral system and McCain's health and American apathy in the face of stolen democracy, so, wotthehell archy, wotthehell.

If you recall the 2004 campaign, it ended up being all about how awful Kerry's military and post-military career had been - nitpicking his time in Vietnam, the circumstances under which he'd been awarded his medals...[etc]

and, along those lines, i've been wondering to myself at what today's race would look like if Obama was the one who had gone to Vietnam, become a POW, offered military info in exchange for medical treatment from his captors, and eventually earned the nickname "Songbird".

no doubt i'd be a very different race. and frankly, i'm pretty sure Obama wouldn't even be the nominee.

She was absolutely unqualified to be governor of Alaska.

Jes, I agree with the rest of your comment, but this point I take issue with. Palin is absolutely unqualified to be the governor of a state with a diversified economy, but Alaska isn't such a state. It is a petro state full of wilderness welfare, and as such, seems to require far less of its leaders than states that face actual resource constraints. She might still be unqualified for this much lower bar, I don't know, but that's a slightly different question.

"Some day I'd like a *strict constructionist* to show me where in the Constitution it says that corporations (or unions for that matter) have rights."

Well, they're made up entirely of people, and people have rights. How exactly would you go about denying a corporation rights without denying them to the specific people acting on behalf of the corporation?

The government uses the tax code and tort law to channel constitutionally protected activities into the corporate form, making it, for instance, infeasible to publish a newspaper of any consequence outside that form. Freedom of speech, freedom of the press, property rights, they're all vulnerable if corporations don't have rights.

OT: Gilchrest unloads with both barrels:

Gilchrest isn't done. "We're in this bad place as a country because of the evangelicals, the neocons, the nasty, bitter and mean . . . very clever ideological groups that use money, technology, fear and bigotry to lead people around," he says. "Voting according to your knowledge and experience -- that's out the window. Competence and prudence? Forget it."

[snip]

"I haven't stepped away from my party," Gilchrest says. "The party has stepped away from Eisenhower and Goldwater and Nixon and Ford and even Ronald Reagan. It's been driven away by this anti-government combination of Milton Friedman and Jerry Falwell."

"and eventually earned the nickname 'Songbird'."

I haven't seen any evidence for that that isn't purely the unproven assertions of some former vets. Have you?

Ditto that he "offered" military info, rather than gave it up after being tortured. I'm not clear how anyone who wasn't a witness could know the former, even assuming it were true.

Overreaching in unprovable accusations is a great way to make provable accusations lose credibility.

Brett,

LC's point concerned the idea of corporate personhood. Nobody doubts that the people who work for corporations have rights. The question is whether the corporations are rights-bearing "people" in and of themselves.

The idea of corporate personhood was certainly not explicitly put in the Constitution nor was it, so far as I know, discussed by the framers. It's a nineteenth-century invention. I don't think it appears in Supreme Court jurisprudence until the 1880s.

And LC's point didn't concern the practical merits of the idea of corporate personhood (truly an argument for another day), but rather how a "strict constructionist" can claim to find any protection for such imaginary persons in the text of the U.S. Constitution. I'd add that those who preach "original intent" would have just as difficult a time locating protection for corporate persons in the Constitution, given the rather late invention of the idea of corporate personhood.

No, corporations themselves are a construct; they would never have existed without government sanction. Every one of those *people* who make up corporations are entitle to each and every right that the Bill of Rights guarantees, as well as those implied via the 9th amendment.

And it's absurd to assume that the right to broad exercise of those rights are abridged by not granting them to corporations. What's wrong with newspapers et al being sole proprietors or partnerships? Nobody is forcing anyone to choose the corporation as a form of business; it's an election to avoid certain liabilities and aggregate capital. You want those advantages? Fine. But don't claim that your artificial entity is tantamount to an actual person when it comes to rights.

And P.S. that's pretty far afield from being a *strict constructionist*.

"How exactly would you go about denying a corporation rights without denying them to the specific people acting on behalf of the corporation?"

Huh? By doing just that: continuing to grant individual people their individual rights, and not granting individual rights to a group entity.

This has been simple answers to, etc.

"Freedom of speech, freedom of the press, property rights, they're all vulnerable if corporations don't have rights."

Freedom of the press should be granted to everyone who writes or broadcasts something to more than one person at a time. How property rights and freedom of speech are vulnerable without corporations, I have no idea. Were the founders aware of this?

Brett, are you perhaps unaware of Santa Clara County v. Southern Pacific Railroad Company (1886), and all its subsequent implications?

See also. I am by no means any kind of expert in the details of this history, and so cannot vouch for how accurate or not the Wikipedia account is in this case. Perhaps the lawyers amongst us might speak to that.

I haven't seen any evidence for that that isn't purely the unproven assertions of some former vets. Have you?

i haven't seen any clear chain of evidence that links the claims out there back to any set of angry vets. as far as i can tell, this is widespread public knowledge.

Ditto that he "offered" military info, rather than gave it up after being tortured.

    An officer came in after a few minutes. It was the man that we came to know very well as "The Bug." He was a psychotic torturer, one of the worst fiends that we had to deal with. I said, "O.K., I'll give you military information if you will take me to the hospital."

    -- John McCain

according to his own account, in his own words, he hadn't yet been tortured - he was wounded from the crash and had been "beaten around a little bit", but not tortured, when he offered information.

Michelle Malkin challenges Ponnuru in the heated competition for most embarrassing post about Couric's Supreme Court question.

Thanks, OCSteve, for the link. I've admired Wayne Gilchrest for a long time (and would happily vote for his clone if ever given the chance; instead I get Rohrbacher). I feel bad for him, his constituents (like you), and the dwindling set of sane Republicans (which I don't think is quite an oxymoron ... yet) for whom his fate cannot be reassuring.

... and let me add - i'm not saying that i would've done anything differently than McCain did. i'm not saying he's a traitor or anything like that.

my point is that our politics are such that a Democrat with this kind of history (even if we accept only the things McCain himself describes) would get excoriated by the GOP for it.

Excoriated? He'd be ineligible for office.

You're over-relying on 3rd party charts if you think that US v. James Daniel Good Real Property helps you much. (Hint, ruling of the Court as to disposition was unanimous, and as to parts I and III).

And worse it appears from that case that 100% of the Court believes that seizure of personal property does not require a pre-seizure hearing, the only split is whether real property (land/house) requires it.

I knew I was getting in way over my head with you but ouch. I'd try to blame it on posting at 5am but that was still a poor performance on my part.

The Kelo case is interesting, I'm as offended by this kind of eminent domain as I am by the forfeiture stuff (i.e., I live in Brooklyn but I won't be rooting for the Nets) and you're right to point it out but the point I was trying to make is that the conservatives aren't consistently the guardians of property rights.

I personally favor their view as to the takings clause of the fifth amendment re "public use" but they're not so fond of property rights when they have to affirm due process under the fourteenth (which is what you referenced in your OP).

warrren terra, why would a foreign invading power be bound by our Bill of rights?

OriGuy, point taken. The 3rd Amendment has ALMOST never been violated.

OT but true story. A lawyer buddy of mine argued in court that his client's 13th Amendment rights were being violated. The guy was ordered to pay $140 per week in child support for his three kids and was only making about $145. Needless to say, the judge yelled at him on the record. "Slavery! You're accusing me of slavery counselor!" Funny as hell. Oh, and the client was a black guy.

"as far as i can tell, this is widespread public knowledge."

I don't know what that means; let me fall back on asking what your cites are, please, regarding McCain being known to the North Vietnamese, or his fellow P.O.Ws at the time, as "Songbird"? Something that isn't just some after the fact declarations, that is; something more solid and verifiable than mere assertion?

"my point is that our politics are such that a Democrat with this kind of history (even if we accept only the things McCain himself describes) would get excoriated by the GOP for it."

Of course.

Off topic but ...

Rolling Stone on McCain

In its broad strokes, McCain’s life story is oddly similar to that of the current occupant of the White House. John Sidney McCain III and George Walker Bush both represent the third generation of American dynasties. Both were born into positions of privilege against which they rebelled into mediocrity. Both developed an uncanny social intelligence that allowed them to skate by with a minimum of mental exertion. Both struggled with booze and loutish behavior. At each step, with the aid of their fathers’ powerful friends, both failed upward. And both shed their skins as Episcopalian members of the Washington elite to build political careers as self-styled, ranch-inhabiting Westerners who pray to Jesus in their wives’ evangelical churches. In one vital respect, however, the comparison is deeply unfair to the current president: George W. Bush was a much better pilot.

Gary,

I can think of an example where denying constitutional rights to corporations would impair free speech. The New York Times Co. is a corporation. In NYT v. Sullivan it was sued for libel, but successfully defended on 1st Amendment grounds. That defense would not have been available if corporations did not have constitutional rights. Without that defense Commissioner Sullivan could have won his libel case and seized the paper's assets to satisfy whatever judgment he won. It would make no difference that the individual reporters could assert 1st Amendment defenses because the corporation itself was the defendant.

Now, that's not to say that free speech requires the existence of corporations in the first place. It's certainly possible to envision an economic system that does not involve corporations but still protects free speech. Nevertheless, we allow companies to do business in corporate form because it's economically efficient. So, denying 1st Amendment rights to corporations would force media organizations to either (A) do business in an economically inefficient form or (B) forgo free speech protections. I don't think that would be a good thing.

I don't know what that means

it means Googling "mccain songbird" gives you 160K hits, which, try as I might, can't all be tracked back to a handful of angry vets who wanted to smear McCain.

more specifically, there are hundreds of references to a 1969 AP article titled "PW Songbird Is Pilot Son of Admiral". i couldn't find the text of that article anywhere, but neither could i find anything that looked like it could be the source of a rumor about that; that is, i failed to find any evidence that anyone made that up as a smear. i couldn't find a site that claimed to debunk the story or that claimed to debunk that there was such a story.

warrren terra, why would a foreign invading power be bound by our Bill of rights?
Gocart, they wouldn't, of course, but I was responding directly to your assertion that:
No English soldier has forced himself into an American's home since the revolution.
which was demonstrably inaccurate.

warren terra, in retrospect, I meant American soldier. Truce?

Let's pretend for a moment that the moderator was from a (perceived) right-leaning news organization with a book (perceived to be) supportive of John McCain set for release on Inauguration Day (which they failed to disclose to the CPD).

1) Does the name Tom Brokaw ring a bell? Is there any doubt after last Sunday he's completely in the tank for McCain? And yet, no fuss from Obama or ObWi.

2) You mean the book that was reviewed by Time in August? Is that the book she "failed to disclose"? It was completely a surprise -- yeah, right!

"Liberal judges seem to think that the property part of the unitary clause doesn't deserve to be taken as seriously as the other two parts. ;)

And conservative judges think the life part doesn't deserve such. Durrr hurrr hur."

Hey if we had mandatory appeals and constant appellate court review of nearly every single property taking case I'd be thrilled.

Oh, and those two things as regards capital cases have been the ideas of conservatives, have they? I think that requires a cite, Sebastian. Actually more than one. Thanks muchly!

And, despite what Scalia and, apparently, you, think the differences between takings cases and executions are nontrivial.

Not to defend right-wing legal theory, but this statement is incorrect:

"Let's start with the idea of originalism. It is based on the purportedly 'neutral' theory that the intended goals of a small fraction of the adult population in 1776, including upholding slavery, should control the interpretation of the Constitution today."

1. Originalism does not deny the validity of constitutional amendments. The 13th Amendment was clearly intended to abolish slavery, and any reasonable person at the time that amendment was adopted would have understood it to abolish slavery. There is simply no originalist interpretation of the Constitution today that would uphold slavery.

2. Also, the Constitution was not "remade" after the Civil War -- it was simply amended. When interpreting an amendment originalism dictates that it should be accorded the same meaning a reasonable member of the general public would have attached to it at the time of its adoption. So, yes, when interpreting the 13th, 14th, or 15th amendments we should look to the 1860's. But there's no reason to look to the 1860's when interpreting provisions that were adopted at other times.

3. The Constitution did not exist in 1776.

Originalism is a respected theory in legal academia. Although many liberal scholars believe that originalism should be tempered with concern for stare decisis or public policy, hardly anyone rejects it outright as a constitutional heuristic. It's simply not accurate to caricature it as some whacky idea entertained solely by pro-slavery rightwingers.

"it means Googling 'mccain songbird' gives you 160K hits,"

Indeed.

And Googling "hollow" and "earth" gets "Results 1 - 30 of about 1,200,000 for hollow earth"

Needless to say, this goes nowhere in proving that the earth is, indeed, hollow.

Neither does "Results 1 - 30 of about 345,000 for 'hollow earth'."

Surely you're not offering the number of hits for words in proximity as proof of something, so the relevance of this fact is unclear to me.

Surely you're not saying that people should pass along as alleged fact something simply because they haven't run across a debunking of something that would require proving a negative?

Because all this would be completely fallacious reasoning, of course. So I'm sure you're not advocating any of these things.

I find it interesting that when I google "Songbird Is Pilot Son of Admiral", the front page gives me hits which include the claims that:

"Reds Say PW Songbird Is Pilot Son of Admiral - Saigon-UPI, June 4, 1969 -- Hanoi has aired a broadcast in which the pilot son of United States Commander in ...

[...]

John McCain, the Admiral's Son
On June 4, 1969, a U.S. wire service story headlined "PW Songbird Is Pilot Son of Admiral," reported one of McCain's radio broadcasts:

[...]

On June 5, 1969, the New York Daily News reported in a article headlined REDS SAY PW SONGBIRD IS PILOT SON OF ADMIRAL, ..

[...]

On June 5, 1969, the headlines reported in the New York Daily News was, "Reds Say PW Songbird is Pilot Son of Admiral,"

[...]

On June 5, 1969, the Washington Post carried a story titled, "Reds Say PW Songbird is Pilot Son of Admiral." The article states that, "Hanoi has aired a ...

Some say June 4th, some June 5th. This is all quite possible if there were such a wire service story. It should be a simple enough matter for anyone with access to Nexis, which I don't currently have, to verify the truth or falsity of these claims.

"Nevertheless, we allow companies to do business in corporate form because it's economically efficient. So, denying 1st Amendment rights to corporations would force media organizations to either (A) do business in an economically inefficient form or (B) forgo free speech protections. "

Yup, that's my point. Want to abolish the corporation? Fine. But don't pass laws to force people to organize into corporations, (And it's not remotely voluntary, in many instances, it's legally obligatory. In a larger class of cases, it's economically obligatory, 'cause you'd go broke trying to run a newspaper without forming a corporation!) and then use the fact that they did so as an excuse to deny their rights.

Perhaps you think this is not an "originalist" argument, but I think it is, in the sense that it follows the general view of the time, that rights restricted the aims the government could pursue, not just how it could pursue them.

Ifill discussed her book May 8th in the Philadelphia Inquirer:

[...] Q: What do you do when you're not reporting or moderating?

A: Well, I am working on this book now, which is frankly taking almost all of my waking hours when I'm not at work. The book is about an emerging generation of black politicians - in fact, when I'm in town, I'll probably talk to your mayor - including focusing on Barack Obama and [Massachusetts Gov.] Deval Patrick and [Newark, N.J., Mayor] Corey Booker - and trying to talk about what we see happening here, and I think there is something fundamental shifting here, which is shifting before our eyes, that goes beyond Barack Obama. It's my first book, so it's terrifying. But when I'm not working all the time, I'm playing with my godchildren and going to movies and doing things normal people do.

Ifill's book was also mentioned in an AP article on July 21st:
[...] "We have an awkward history about how to talk about race in the nation and in newsrooms," says Gwen Ifill, senior correspondent for PBS'"The NewsHour with Jim Lehrer" and author of "The Breakthrough: Politics and Race in the Age of Obama," slated for publication early next year.
It was also written about in the Washington Post on September 3rd by Howard Kurtz:
[...] To the extent she can carve out any spare time, Ifill is working on a book called "Breakthrough: Politics and Race in the Age of Obama." She focuses on the Democratic nominee and such up-and-coming black politicians as Massachusetts Gov. Deval Patrick and Newark Mayor Cory Booker.
That's just what I ran across at first glance.

cleek: according to his own account, in his own words, he hadn't yet been tortured - he was wounded from the crash and had been "beaten around a little bit", but not tortured, when he offered information.

According to McCain's own account, he knew he was most likely going to die pretty soon if he didn't get medical treatment.

Denial of medical treatment to an injured prisoner can be torture - if medical treatment is available and deliberately withheld, the injured prisoner is being tortured. It's one of the methods known to have been used in Bagram Airbase and Guantanamo Bay.

While it's possible McCain talked up his injuries in order to make his breaking under torture seem more acceptable (ironically, he is no longer able to identify what was done to him as torture, since it all qualifies only as "harsh interrogation" according to the Bush administration) his account is plausible enough.

Jeff: Does the name Tom Brokaw ring a bell? Is there any doubt after last Sunday he's completely in the tank for McCain? And yet, no fuss from Obama or ObWi.

Doubt? Sure. He mainly seems to have been lately trying to repair damage between NBC and the campaign (which was going to shut NBC out of the debates).

But are we really going to compare a Sunday morning news show watched by around 3 million people with the one and only VP debate in a historic and critical election? I’m thinking that tonight’s debate ratings are going to top the 52 million who watched the first prez debate. Not really the same thing IMO.

NPR is to much of the right what FNC is to many of you here. Democrats wouldn’t even attend a debate with them hosting when it was all Democrats debating. So it’s Brit Hume hosting the debate tonight. It’s likely to be the largest audience in history to ever watch a debate. He has a book supportive of McCain coming out on Inauguration Day. He panned Biden’s DNC speech. No fuss here at all, nope. You’d all be just fine with it.

You mean the book that was reviewed by Time in August?

I didn’t say she was keeping a secret or that the information was not readily available. I said she failed to disclose it to the commission. And the McCain campaign was apparently not aware of it when they accepted her as the moderator. (We know how good they are at that whole vetting thing.)

Beyond the book there are interviews where she is just gushing over Obama.

I mean come on – if she was a judge presiding over a lawsuit between the two campaigns she would have to recuse herself. (I swiped that from somewhere but I forget where.)

as to the date of adoption of the Constitution, oops. Glad i'm not running for VP.

As for remaking the Constitution, I think there's a very powerful argument that that was the intent of the 14th Amendment, functionally reversed by the Sup. Ct. in the Slaughter-house cases.

Originalism / textualism may be a respected theory of constitutional interpretation among conservative & libertarian academics. Yet somehow whenever the leading conservative jurists of our age are faced with adverse consequences from applying that theory in a particular case, they cave.

Which makes them legal pragmatists / realists. oh, and hypocrites.

And McCain is apparently giving up in Michigan.

I guess he shouldn't have bought those foreign cars.

But are we really going to compare a Sunday morning news show watched by around 3 million people with the one and only VP debate in a historic and critical election?

No, the comparison is between the moderator of the VP debate and the moderator of one of the presidential debates. The significance and audience will be similar.

Beyond the book there are interviews where she is just gushing over Obama.

Cite? I've been following the evolution of the Wikipedia articles on Ifill and the debate for the last 24 hours or so, and if "gushing" quotes exist I'm astonished that none of the many people pushing the Ifill "bias" story into the articles has mentioned them.

Ifill is not in any way equivalent to a Brit Hume of the left.

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