Next Justice to believe in "Unitary Executive" theory?

55 posts / 0 new

Comments

I don't think they knew what they were doing in terms of these consequences of elections both stolen and lied to win. The people were not asked about corporate personhood or money as speech. They were fed a bunch of hooey about "judicial activism" and "legislating from the bench" as if that were what the Left would do, and promising that the Right would never go there.

How's that "settled law" thing doing?

Fear of government can be appropriate when we look at the record or rap sheet of the Supremes. Democracy by Curia is a curious twist on popular sovereignty, one that these "freedom loving, government fearing" folk ought to be truly pissed about. Were they real freedom lovers. And if they did not love having the government protect their bigotry--and their dogamatic use of government to make other citizens illegal.

I hope there is some reflection among these tp events. The disconnect between their rhetoric and reality is nearly total, but that does not make their fear and anger less real. It just makes it more pathetic.

DRC's picture
DRC
Joined:
Jul. 31, 2007 3:01 pm
I don't think they knew what they were doing in terms of these consequences of elections both stolen and lied to win. The people were not asked about corporate personhood or money as speech. They were fed a bunch of hooey about "judicial activism" and "legislating from the bench" as if that were what the Left would do, and promising that the Right would never go there.

I think that you give the American people too much credit. It was the American people who vote for the likes of Mitch McConnell. They know full well what their ideology is and they support it.

jeffbiss's picture
jeffbiss
Joined:
Jul. 31, 2007 3:01 pm
Quote jeffbiss: I wouldn't use the word "expert" except in the context that they may be experts in knowing what they think.

People trained in law, lawyers, PhDs in Constitutional law, these people fit into a system, a hierarchical system, and we use the term "expert" in a general sense. If you want to nit pick the language we can do that forever. We will not reach a mutual understanding about what's actually going on by nit picking, I'm afraid.

Quote jeffbiss:And yet a future court can overrule a ruling based on just such an interpretation or Congress can impeach to rebalance power! In effect, this is a circular argument until the constitution is either amended to agree with such an interpretation or thrown out altogether, which are always possibilities. That enough people voted for righteous and corporatist officials to date and so pushed the United States so far right gives me little hope, but there is always hope

Are you a strict constructionist, jeff? Do you know the absolute meaning of the Constitution?

Right now the Constitution is -- by these people's intricate efforts to interpret it with extensive convoluted arguments -- said to be very much in agreement with their interpretation. They stand up and argue that over and over against people who would interpret it much the way you do.

Who wins the argument over who's interpretation is correct? Yours or theirs?

I'll tell you one way you can tell who wins. Who's on the court making the judgements according to their particular interpretation? Answer that and you've got my answer.

We are having the circular argument. If you are going to stick to this belief:

Quote jeffbiss:this is a circular argument until the constitution is either amended to agree with such an interpretation or thrown out altogether

We can go no further. Because that belief assumes there is an absolute meaning of the Constitution and that you know what that is.

But that's not what's going on here. These people did not sit down in 1982 and try to intentionally misinterpret the Constitution. And then from that intentionality, develop the Federalist Society into a brainwashed cult of lawyers, judges, and legal scholars intent on misinterpreting the Constitution. These are the facts on the ground right now:

Federalist Society:

The Federalist Society for Law and Public Policy Studies, also known as the Federalist Society, is an organization for "conservatives and libertarians interested in the current state of the legal order." Founded in 1982, the group's core belief is that the constitution should be interpreted in its original form.

"Founded in 1982, the group's core belief is that the constitution should be interpreted in its original form."

Which original form, jeff? Yours or Robert's, Alito's, Scalia's, Thomas's, Kennedy's and maybe eventually Kagan's? And if Obama is ousted in the next election, does it matter if the Republican is going to choose someone with that interpretation? What does it matter if Obama not only caves with a choice like Kagan, but embraces the theory, as all his actions show that he does?

As far as a growing body of very commited legally trained people who take up key positions in the legal system where the law gets translated is concerned -- "legally trained people" (I'll avoid the term "experts") such as those appointed to the Presidency's Office of Legal Council, the Justices on the Supreme Court, the 49% of Federal Judges Bush appointed from the Federalist Society -- they are translating the meaning of the Constitution correctly.

The problem is interpretation. You can go around and around about who is going to interpret what when, but that doesn't really deal with the problem presented here and now, by a right leaning interpretaive theory, A theory being taught at the highest levels in our universities, A theory that if you subscribe to and join their society may get you a nice posh seat as judge in courtroom some day. An interpretation that is stacking the Supreme Court.

That's all I have to say. I'm not going around on this again. I want to take a break from the board for awhile, anyway. This topic especially has consumed a lot of my time in the past and it's pretty much a waste in the end. I may try to write some articles one of these days. But I have less hope than you do, so I don't know.

All I can do is raise the alarm and hope for consciousness raising.

I think this is just one way that one arm of our tripartite balance of powers have been taken over by a move towards authoritarian thinking and away from democracy. Congress has done its share. As noted earlier, they stopped the appontment of Dawn Johnsen to the OLC. I think the march towards an authoritarian society has become a lemming like swarm. Most are pretty confused. The Tea Partiers are among them, and I am concerned about the binary reaction to them I'm seeing, rather than recognizing them as confused and in need of help. This is merely my meager attempt to present some clarity. Hopeless, maybe. Who can say. Karma is complicated.

Personally, I'm not going with the march. I'm into developing local sustainable strategies through community building activities, so I don't have to go rushing out into the water with the other lemmings looking for basic survival necessities they've consumed under the existing cancerous system, and drown while swimming to nowhere. Maybe I'll get a chance to live out my life in some semblence of comfort with a community of like minded friends. We've got a core group here in this little enclave off the central arteries. Maybe not. That's my solution. I wish you all the best in yours.

.ren's picture
.ren
Joined:
Apr. 1, 2010 6:50 am
People trained in law, lawyers, PhDs in Constitutional law, these people fit into a system, a hierarchical system, and we use the term "expert" in a general sense. If you want to nit pick the language we can do that forever. We will not reach a mutual understanding about what's actually going on by nit picking, I'm afraid.

I'm not nit-picking only stating that I don't think that ideologues are experts. Such people "study" the subject within the context of their belief system.
Are you a strict constructionist, jeff? Do you know the absolute meaning of the Constitution?

That I see the constitution as interpretable, I'd say that I'm not a constructionist. As far as its absolute meaning, that is that its the guideline for our republic and provides the flexibility required for goverance.
We can go no further. Because that belief assumes there is an absolute meaning of the Constitution and that you know what that is.

What I am saying is that the reality is that the court could very well be stacked in their favor and they could indeed allow Yoo's theory of the UE to operate and that the Legislature could be stacked to do nothing ro rebalance the triumverate. That is until another court doesn't accept Yoo's theory and overrules any previous court rulings and/or the Legislature chooses to rebalance the triumverate. The only thing that would allow them a certain victory would to amend the constitution, which would codify Yoo's theory of the UE.
But that's not what's going on here. These people did not sit down in 1982 and try to intentionally misinterpret the Constitution. And then from that intentionality, develop the Federalist Society into a brainwashed cult of lawyers, judges, and legal scholars intent on misinterpreting the Constitution.

Of course they don't think that they misinterpret, they believe they properly interpret. And I don't agree with them nor consider them "experts". I don't have to. Law, including constitutional law is not science, such as physics in which you are either right or wrong. It is philosophy and wining and losing depends wholly on gaining the political power to enact one's ideology.
Which original form, jeff? Yours or Robert's, Alito's, Scalia's, Thomas's, Kennedy's and maybe eventually Kagan's?

I don't accept their view of "originalism" as I see the constitution as a living document that provides quidelines with enough flexibililty for governance.
The problem is interpretation. You can go around and around about who is going to interpret what when, but that doesn't really deal with the problem presented here and now, by a right leaning interpretaive theory, A theory being taught at the highest levels in our universities, A theory that if you subscribe to and join their society may get you a nice posh seat as judge in courtroom some day. An interpretation that is stacking the Supreme Court.

Precisely. Therefore, the only way to confront what I see as an unsupported theory is to confront it and recognize adherents for what they are, ideologues and not experts. Unfortunately, the reality could turn out to be that they win, which would require that the fight go on to alter the dynamics so that they lose.

LATE ADDITION: Actually, I think we're talking past one another. I share your concern over the next nominee but don't think that all is lost, if Yoo's theory of the UE is accepted by the next nominee, until the constitution is amended to meet its requirements. That certainly doesn't mean that without codification it wouldn't be accepted as the operational paradigm, only that it could ultimately be refuted, if the American people had the political will to create such a political environment.

jeffbiss's picture
jeffbiss
Joined:
Jul. 31, 2007 3:01 pm

Currently Chatting

The Death of the Middle Class was by Design...

Even in the face of the so-called Recovery, poverty and inequality are getting worse in our country, and more wealth and power is flowing straight to the top. According to Paul Buchheit over at Alternet, this is the end result of winner-take-all capitalism, and this destruction of the working class has all been by design.

Powered by Drupal, an open source content management system