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August 18, 2007


I am open to the idea that obscenity is just too hard to divorce from protected speech and thus has to be left alone, but that absolutely doesn't square with the idea that political speech--the very core of the protection--could be limited in any way under campaign laws. Choose one position or the other, but the liberal position of trying to have both just exposes the disdain for the process and the ascendency of ends-oriented 'analysis'.

1)The assumption that spending money is "speech" is simply begging the question; it is not self-evident or determined in the text. So it's not a necessary contradiction, and certainly it requires political, extratextual sources to define corporate spending as pure speech. And the problem cuts both ways -- I note that the foremost "textualist" on the 20th Supreme Court, Black, was a First Amendment absolutist. Where do you see the Constitutional text that says "Congress shall make no law abridging the freedom of speech, unless there are exposed breasts in the text?" My copy must be defective.

But I'd be interested in seeing your analysis of Marshall's opinion in Gregg. Is it 'wrong'? On what basis is it wrong? How does it differ from legitimate non-textualist analysis? Perhaps by deconstructing it you could show a liberal version of jurisprudence that has definable limits and avoids the pitfalls of "words are hard to understand" that you think are such devestating criticisms of textualist methods.

Again, I'm not criticizing textualist methods per se; I'm saying that everyone is in some sense a textualist, but the text doesn't resolve most interesting disputes on its own. At any rate, Marshall's dissent in Gregg is highly unconvincing, because the precedents he's applying require an increasing consensus, and plainly the post-Furman legal landscape makes it clear that there is no such consensus. A good legal opinion should be internally logical; the Marshall/Brennan position is not. Claiming that there would be a consensus if people knew what you know is specious and opens up a dangerous path. It's a weak, unpersuasive opinion, although it does not contradict the text of the 8th Amendment per se.

At any rate, your tu quoques simply don't cut the other way. I have never said that liberal judges haven't made sloppy arguments or mechanically apply the law. You have made this claim about conservatives, although I've cited several opinions that if are anything worse than Marshall's opinion in Gregg.

I've said that conservatives don't make sloppy arguments? I don't think so. I've said that the textualist technique is less open to abuse than any other I've seen. That doesn't make it perfect.

I've said that setting up situations where we just accept that the decisions of judges are political instead of requiring that they be governed by the law, is bad.

I think that the 'conservative' opinion regarding assisted suicide (Gonzales v. Oregon) is wrong on commerce clause grounds. Of course the liberals get the same case wrong if they still believe in Raich, so ends oriented judging rules again. And I believe all this despite thinking that the policy of assisted suicide is very very wrong. That is part of the problem, in today's free-form-justified environment it is difficult to imagine most justices, but especially the liberal justices reaching conclusions that disagree with their own personal policy sense. Nearly anything a liberal might want out of Constitutional law can be squeezed into a penumbra of the due process clause as currently gamed. But if you can do that, you don't have a leg to stand on when the President invokes what ought to be clearly too-expansive interpretations of his war powers. What are you going to do, insist on the text?

"Claiming that there would be a consensus if people knew what you know is specious and opens up a dangerous path."

What makes this 'specious'? What principle of liberal Constitutional law requires that? What dangerous path is opened up by it, and why is that path closed under liberal jurisprudence (though it clearly is not in fact closed under liberal jurisprudence, Marshall and Brennan are two of the most respected liberal jurists around)?

"There's nothing wrong with that per se, but it seems pretty relevant since you're making accusations about human nature and its associated failings..."

If you think it is human nature to be as open to criticizing people on your own side as those you disagree with, please state so clearly.

Do you actually believe that, or are you just be pedantic?


Well, I agree with you that human beings exhibit biases that make them more inclined to treat members of in-groups more favorably than outsiders.

Note the use of the word inclination. It does not follow that people actually do this in practice all the time or even very often or very significantly.

I don't quite see where you're going though...my point is that we should talk about human cognitive biases and that I don't think any such discussion can be complete without mentioning the fact that you consistently propose explanations that discredit your political opponents and never reflect poorly on yourself. I would argue that humans also have inclinations to hose behaviors as well. Do you disagree? Do you feel that point is irrelevant to your point?

Sure, I have been known to minimize actions which reflect poorly on me. I also accept that is a non-laudable point of human nature. I do feel that is irrelevant to most of the discussions going on in this thread, and all of the interesting ones. But that could be my bias. I'll let others judge.

Any thoughts on the judging issue or would you rather talk about me?


Thanks for answering my queries.

I like to talk about things that seem incorrect to me; if you cannot tolerate comments about yourself, you may wish to avoid making comments about yourself. To be fair, Gary raised the issue, and you ran with it, so my comment could have just as well been directed at Gary, but he knows a great deal less about you than you do.

As for judges, I feel my views are well enough represented on this thread that adding a long winded "me-too!" would only hurt the signal to noise ratio.

Of course the liberals get the same case wrong if they still believe in Raich, so ends oriented judging rules again.

Except, of course, that all four of the court's more liberal justices (correctly, in my view) cast principled, non-outcome-oritenetd votes in Raich, despite their allegedly "fee-from" jurisprudence, while the Court's most prominent alleged "textualist" did not cast a principled vote. This is partly because "disagreeing with Sebastain Holsclaw's highly contestable interpretations of ambiguous constitutional text" != "disregarding the text altogether."

"What makes this 'specious'? What principle of liberal Constitutional law requires that?"

The argument is specious because it's specious. The standard being applied in the case is perfectly defensible, but the evidence adduced by Marshall and Brennan simply doesn't lead to their conclusions. It's obvious that no grand theory can constrain a judge willing to make a willful argument, whether the judge is conservative or liberal.

On the other hand, given the decisions in Seminole Tribe, Adarand v. Pena and Bush v. Gore (all of which, I note, got 5 votes, unlike the death penalty opinions you're obsessed with) we can safely say that by your standards "nearly anything a conservative might want out of Constitutional law can be squeezed into a penumbra of the Constitution as currently gamed." Your assertion that conservative justices are less outcome oriented than liberal judges is simply false, and this is doubly true of Alito and Roberts, who reach conservative policy results in virtually every case that breaks along predictable lines. (Scalia and Thomas are somewhat more principled, although not -- as with affirmative action -- conflicts with strongly held political beliefs.)

Oh--and I forgot to mention that Seb is simply wrong about the alleged contradiction between Raich and Oregon. The latter was a statutory interp. case, not a Commerce Clause case. The majority's holding did not deny that Congress had the power to authorize the AG to pre-empt Oregon's assisted suicide law, only that it had not done so.

Hilzoy: "There are a lot of dreadful things not ruled out by the constitution, things that we depend on our fellow citizens not to enact."

Yes, of course. But in this case, your interpretation of the Eighth Amendment flies, as I pointed out, in the face of all understanding in prior English law as to what the restriction of no "cruel and unusual punishment" restricted the state from doing: passing certain laws, it flies in the face of everything the people writing the U.S. Constitution believed restriction of no "cruel and unusual punishment" restricted the state from doing: passing certain laws, and it flies in the face of every Supreme Court decision ever made on the question of restriction of no "cruel and unusual punishment" restricted the state from doing: passing certain laws.

So I am absolutely baffled that you hold such a belief, which contradicts every available source about what the Eighth Amendment means.

I could detail this at length, but do you contest these points? Because they seem like fairly significant and basic points to me, he unterstated. How do you support such an interpretation, which so far as I know, has no connection with our law or history whatsoever?

Perhaps I'm just ignorant of scholarship you have in mind; that's entirely possible, of course.

Does everyone else agree with Hilzoy?

Would anyone else like to speak up about her assertion that the Constitution allows a statute mandating that all convicted burglars have their intestines exposed and chewed on by fellow prisoners, and that allows for punishment by electric drilling of kneecaps?

Does everyone believe that Hilzoy is correct in this?

Or what? Do we have to get Sebastian to post this stuff under his name, to get actual debate?

I only mention this because you specifically ask Gary, but I (and I think a number of other posters) tend to steer clear of these legal threads, even though I read them quite closely. So silence is not agreement or disagreement, it's that the target of the discussion often shifts, so it's hard to discuss.

"Does everyone believe that Hilzoy is correct in this?

Or what? Do we have to get Sebastian to post this stuff under his name, to get actual debate?"

I don't believe hilzoy is correct about it, if for no other reason than because it wouldn't make sense bothering to put it into the Constitution if that were how it were interpreted. But since I have about 4 other axes to grind on this thread, I'm not introducing another one--especially as I suspect just about anyone else could do it.

Emerging from my lurking shadow, I wish to state that I am having trouble with Hilzoy's position on the 8th and with her responses to Gary's questions. There's a disconnect somewhere, and, yes, it's weird, unusual even. Probably not cruel, though.

It seems to me that just reading the words of the Constitution, with no reference to the past law and circumstances and precedents the writers very much had in mind, and with no reference to what they themselves meant and intended, and with no reference to how all subsequent authorities have interpreted them, is a common and grave fallacy.

It's not one I expected to see from Hilzoy.

It is one that seems to me to easily be demonstrably incorrect. I know Hilzoy must be quite busy, but I do hope she can find time for further discussion of this, as her schedule allows.

It's a pretty big point.

Gary, I did post a question at 9:57 AM, which I hoped to get an answer to. So you're not alone. And since I didn't expressly state it then, I'll say now that I disagree with Hilzoy's interpretation and am surprised by it.

hilzoy: Thus, according to me, no punishment assigned by statute can ever be "cruel and unusual."

I too tend to steer clear of the legal threads once particular cases and precedents emerge, not having read many in the past ten years, but I'm also a little bewildered by this. To crystallize the point of contention: would it be possible under your theory of jurisprudence for rape to become a legal punishment under the Constitution? In particular, would it be Constitutional for Congress to make shoplifting -- use a minor federal crime if you're worried about Tenth Amendment issues -- punishable by rape?

Given Hilzoy's lack of response here, this is clearly a topic we'll be returning to.

That Hilzoy seems to clearly be avoiding this topic is unfortunate.

Gosh, this is kinda astonishing.

I'd like to see responses from fellow liberals, but I'm very disappointed so far. Do we most care about who we address? Or what?

Where are the people who care about our Constitution, beyond Hilzoy? What tf do you people care about?


FWIW, I think hilzoy's interpretation is crazy, for reasons already explained on this thread. I don't have much to say on the topic since I was waiting for a real response from her.

To be honest, this worries me less than an equivalent statement from a conservative poster because it seems like hilzoy's error is a random failure and not part of a systemic misunderstanding of the rule of law or the constitution. That suggests that hilzoy will fail to correctly analyze questions involving the 8th amendment, but will be sane in other areas. Another poster who had the same bizarre interpretation but arrived at that interpretation by way of a value system that, say, argued that habeus corpus didn't exist and that the government had an unlimited right to monitor all communications would be a different story. Individual errors are different from individual errors that indicate systemic errors.

I admit that this is a fine line and requires a subjective assessment, but that might explain some of the liberal silence here.

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