The Democrat Thread

[StrangeSox]

Who says they haven't? He said that textually speaking the Constitution doesn't prohibit discrimination on the basis of gender or sexual orientation. He's right. It's not in there. Judges have added that to be specific to a certain group. He doesn't say that's good or bad on that issue, just that it's not democracy when 9 people can legislate something like that.

 

And the difference is that the 14th doesn't single out any particular group, like gender. It's equal protection for all. If you're reading it to include everyone, then fine. It's now unconstitutional to discriminate on the basis of any criteria that person A has that person B doesn't have. Red heads now can't be discriminated against, fat people can't be discriminated against, Cubs fans can't be discriminated against solely on those characteristics. Is that how we read the Constitution?

 

He's saying that states could pass a law discriminating on the basis of gender or sexuality and there'd be nothing to SCOTUS could do about it. It essentially guts the 14th amendment.

 

edit: His point about the importance of legislators actually, well, legislating, is good one. That's not what I'm disagreeing with.

 

In Bush v Gore it was based on the fact that voters were being treated differently. In county A their votes were counted, in county B their votes were not. I'm not really a fan of the argument, but basically that's what it was.

 

My point was to illustrate Scalia's willingness to abandon his "originalist" stance whenever he sees fit.

 

How does his originalist stance match up with treating corporations as people with free speech rights? Were the drafters of the BoR thinking of that?

 

How does his originalist stance match up with gun regulation? The founders surely were not considering semi-automatic weapons.

 

How does his originalist stance match up with search and seizure? The founders didn't envision wiretaps and electronic communication, so is that fair game for government eavesdropping?

etc.

Edited January 4, 2011 by StrangeSox

[StrangeSox]

If you had to read the entire bill from scratch the moment it was presented, yes, it would have been impossible. However, you'd also be the worst legislator in human history, since 99% of the bill had been available for weeks beforehand, passed by the House about 3 times, passed by the Senate twice, passed by 3 different Senate committees and I can't remember how many in the House.

 

If you didn't know what was in the bill, after a year of hearings, discussions, proposals, etc., even after the 2008 Campaign had a strong focus on Health Care reform (especially in the Democratic Primaries), then you're just lazy. Sure, a clause or two might have gotten through that your team missed or didn't understand, but come on.

 

It's just an impossible standards tactic.

[Jenksismyhero]

My point was to illustrate Scalia's willingness to abandon his "originalist" stance whenever he sees fit.

 

How does his originalist stance match up with treating corporations as people with free speech rights? Were the drafters of the BoR thinking of that?

 

How does his originalist stance match up with gun regulation? The founders surely were not considering semi-automatic weapons.

 

How does his originalist stance match up with search and seizure? The founders didn't envision wiretaps and electronic communication, so is that fair game for government eavesdropping?

etc.

 

But this is the problem with providing 9 people that kind of power. Based on the various decisions of the courts, Judges can create an opinion that weaves whatever they want into it. There's no set standard because SCOTUS has decided that it has the power to go beyond the Constitution in some cases, or to ignore the Constitution in others. It's absolutely up to their beliefs and writing ability.

 

 

[Jenksismyhero]

It's just an impossible standards tactic.

 

But this ignores the original comment, which is why does a repeal of this law require further discussion or debate or study? As you all contend, everyone spent months and months with this, so they know whether it'd be a good idea or not.

[StrangeSox]

But this ignores the original comment, which is why does a repeal of this law require further discussion or debate or study? As you all contend, everyone spent months and months with this, so they know whether it'd be a good idea or not.

 

The article bs posted was mocking Republicans for whining about no debate or study and having it "shove down our throats," but now the defense of such a quick repeal is "oh it's been debated enough already!"

 

Can't have it both ways. I'm sure plenty of liberals would still be pissed at this quick vote even if it didn't fly directly in the face of conservative rhetoric on the issue, but that's not the point.

[StrangeSox]

But this is the problem with providing 9 people that kind of power. Based on the various decisions of the courts, Judges can create an opinion that weaves whatever they want into it. There's no set standard because SCOTUS has decided that it has the power to go beyond the Constitution in some cases, or to ignore the Constitution in others. It's absolutely up to their beliefs and writing ability.

 

Aside from restructuring the basic format of our government, what's the remedy?

 

And you didn't address the issue that the logical conclusion of his position is that states can make laws for gender and sexuality-based discrimination without worry of equal protection violations. That seems pretty self-contradictory on its face.

[Balta1701]

The article bs posted was mocking Republicans for whining about no debate or study and having it "shove down our throats," but now the defense of such a quick repeal is "oh it's been debated enough already!"

 

Can't have it both ways. I'm sure plenty of liberals would still be pissed at this quick vote even if it didn't fly directly in the face of conservative rhetoric on the issue, but that's not the point.

Let em go ahead and have the vote. The timing's beautiful actually. 3 weeks after everyone on Medicare gets a big chunk of the "Donut hole" closed.

 

The real fun is going to be in Feb. when they pass a budget de-funding the ACA and the Senate passes one funding it.

[Jenksismyhero]

Aside from restructuring the basic format of our government, what's the remedy?

 

And you didn't address the issue that the logical conclusion of his position is that states can make laws for gender and sexuality-based discrimination without worry of equal protection violations. That seems pretty self-contradictory on its face.

 

I don't think you restructure, I think you allow for states to have greater control over their own citizens as was the original intent. I think the threshold for overturning laws made by the states should be higher (on those questioning it). Which is probably his response to your second point. The 14th isn't automatically thrown away, and states can't make any law they please. Instead, the standard to overturn those laws would change.

 

Here's a cite he uses in his VMI dissent, which deals a lot with this issue and with the Courts power to just make up (i.e., narrow/broaden it's standard of review) whenever it fits their opinions:

 

Justice Brandeis said it is "one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion). But it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a "more perfect Union," ante, at 41 (a criterion only slightly more restrictive than a "more perfect world"), can impose its own favored social and economic dispositions nationwide. As today's disposition, and others this single Term, show, this places it beyond the power of a "single courageous State," not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. ___ (1996); Romer v. Evans, 517 U. S. ___ (1996). The sphere of self-government reserved to the people of the Republic is progressively narrowed.

 

Edit: some additional portions of his opinion I liked and agreed with:

 

I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal-protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state "classifications based on race or national origin and classifications affecting fundamental rights," Clark v. Jeter, 486 U. S. 456, 461 (1988) (citation omitted). It is my position that the term "fundamental rights" should be limited to "interest traditionally protected by our society," Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (plurality opinion of SCALIA, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider "fundamental." We have no established criterion for "intermediate scrutiny" either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___ (1994) (slip op., at 38); Mills v. Habluetzel, 456 U. S. 91, 98-99 (1982); Craig v. Boren, 429 U. S. 190, 197 (1976).

 

I have no problem with a system of abstract tests such as rational-basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that "equal protection" our society has always accorded in the past. But in my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts. More specifically, it is my view that "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Ill., 497 U. S. 62, 95 (1990) (SCALIA, J., dissenting). The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment. See, e.g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990) (plurality opinion of SCALIA, J.) (Due Process Clause); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 156-163 (SCALIA, J., dissenting) (Equal Protection Clause); Planned Parenthood of S. E. Pa. v. Casey, 505 U. S. 833, 979-984, 1000-1001 (1992) (SCALIA, J., dissenting) (various alleged "penumbras").

Edited January 4, 2011 by Jenksismybitch

[Jenksismyhero]

The article bs posted was mocking Republicans for whining about no debate or study and having it "shove down our throats," but now the defense of such a quick repeal is "oh it's been debated enough already!"

 

Can't have it both ways. I'm sure plenty of liberals would still be pissed at this quick vote even if it didn't fly directly in the face of conservative rhetoric on the issue, but that's not the point.

 

You can't have it both weighs either then. Apparently there was enough debate the first time, so why do you need more debate now?

[StrangeSox]

You can't have it both weighs either then. Apparently there was enough debate the first time, so why do you need more debate now?

 

I don't. It's simply mocking conservative rhetoric/lying on the issue.

[southsider2k5]

I don't. It's simply mocking conservative rhetoric/lying on the issue.

 

Which, if you disagree with having an immediate vote, means you apparently agree with the original conservative thoughts.

[StrangeSox]

I don't think you restructure, I think you allow for states to have greater control over their own citizens as was the original intent. I think the threshold for overturning laws made by the states should be higher (on those questioning it). Which is probably his response to your second point. The 14th isn't automatically thrown away, and states can't make any law they please. Instead, the standard to overturn those laws would change.

 

But we very quickly moved away from the idea of a "Union of Individual quasi-nation-states," and it was all but killed during Reconstruction. States should not have any control over making discriminatory laws, as was evidenced by all of the blatantly discriminatory poll taxes, segregation laws, etc. Ultimately, I'm a US citizen, not an Illinois citizen, and my basic civil rights, as afforded by the US Constitution, shouldn't be any different than an Indiana resident living 20 miles east of me.

 

How do you handle Brown vs. Board in a manner that is consistent with Scalia's opinion here but that doesn't overturn it?

 

Here's a cite he uses in his VMI dissent, which deals a lot with this issue and with the Courts power to just make up (i.e., narrow/broaden it's standard of review) whenever it fits their opinions:

 

Ironic, again considering Bush v Gore. Seems as if Scalia just uses his orginalism when it suits him. Kinda undermines any arguments of his that appeal to it. And, of note, this was a 7-1 dissent, highlighting that Scalia does not feel women are afforded any sort of protection from discrimination. If "women" isn't a category that 14A is applicable to, then what the hell is? And how does Scalia find 2A to grant individual firearms ownership rights (something I agree with), but can't seem to find gender- and sexuality-based discrimination in 14A?

Edited January 4, 2011 by StrangeSox

[BigSqwert]

If "women" isn't a category that 14A is applicable to, then what the hell is?

 

Hobbits.

[Jenksismyhero]

But we very quickly moved away from the idea of a "Union of Individual quasi-nation-states," and it was all but killed during Reconstruction. States should not have any control over making discriminatory laws, as was evidenced by all of the blatantly discriminatory poll taxes, segregation laws, etc. Ultimately, I'm a US citizen, not an Illinois citizen, and my basic civil rights, as afforded by the US Constitution, shouldn't be any different than an Indiana resident living 20 miles east of me.

 

How do you handle Brown vs. Board in a manner that is consistent with Scalia's opinion here but that doesn't overturn it?

 

But you realize the statement "discriminatory laws" is bogus right? Discriminatory laws are on the books everywhere. Ever hear of minority contracts? Both sides pull random quotes from various precedents and portions of statutes and constitutions to fit what they want. On one issue discrimination based on race is horrible, in another it's required. Which is why a democratic system where legislators legislate versus 9 people is the best option.

 

I think there's a way to have both. And again, that comes down to the deference you give to states to make laws that comport to their citizens' views.

 

 

Ironic, again considering Bush v Gore. Seems as if Scalia just uses his orginalism when it suits him. Kinda undermines any arguments of his that appeal to it. And, of note, this was a 7-1 dissent, highlighting that Scalia does not feel women are afforded any sort of protection from discrimination. If "women" isn't a category that 14A is applicable to, then what the hell is? And how does Scalia find 2A to grant individual firearms ownership rights (something I agree with), but can't seem to find gender- and sexuality-based discrimination in 14A?

 

I'd imagine his response would be it's not up to the court to decide what characteristics should be afforded discrimination protection. But you'd have to ask him. If you're interested in how his originalist ideas gel with these types of issues, he has a good back and forth with Richard Posner about it. I'd quote some of it but my book is at home.

Edited January 4, 2011 by Jenksismybitch

[StrangeSox]

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to [racial segregation]. So does that mean that we've gone off in error by applying the 14th Amendment to [it]?

 

I don't see how Scalia can reconcile his view of "what Congress thought in 1868 is most important" without having to reject Brown v Board. Which would make his opinion wrong and would render the Equal Protection Clause useless, because you couldn't really apply it to anything that wasn't how things were in 1868.

 

I don't think Scalia's orginalist ideas really do gel with these issues, except as a post-hoc rationalization when it's convenient.

[StrangeSox]

I think there's a way to have both. And again, that comes down to the deference you give to states to make laws that comport to their citizens' views.

 

I think we have pretty clear historical evidence that that system is not a realistic solution to the problem and that it instead results in institutionalized racism and other forms of discrimination.

 

[lostfan]

You'll never "know enough about" it though, that's the point. It was the most-debated piece of legislation in my lifetime.

maybe even in history.

[Balta1701]

maybe even in history.

I think the Civil Rights act of 1964 still wins, but the Affordable Care act is actually disturbingly close.

[Balta1701]

I found the headline of this video to be the most entertaining part.

 

[HuskyCaucasian]

Michele Bachmann is considering a 2012 presidential bid.

Oh please do! She'll be the Palin of 2012

[Balta1701]

Michele Bachmann is considering a 2012 presidential bid.

Oh please do! She'll be the Palin of 2012

So you're saying the ticket will wind up being Palin/Bachmann?

[HuskyCaucasian]

So you're saying the ticket will wind up being Palin/Bachmann?

no no. Just saying she'll be torn apart and an excellent lightning rod for democrats.

 

I think the GOP ticket will have Huckabee on it.

Edited January 5, 2011 by Athomeboy_2000

[Balta1701]

no no. Just saying she'll be torn apart and an excellent lightning rod for democrats.

I think Palin will do just fine, thanks.

[Balta1701]

One other topic I wanted to note before heading off...

 

The House Rule that I noted a few days ago which allows the head of the Budget Committee, Paul Ryan, to essentially write and have his own budget automatically passed...it's actually interesting to note how that fits in with the discussion from yesterday about how horrid it was that the bill couldnt' have been read, and another part of the Health Care bill as well.

 

Essentially, the House is using "Deem and Pass"...which if you'll recall, when the Democrats considered using it to avoid an unpalatable vote on the Health Care bill, was the absolute worst thing eva. "The Slaughter Solution", "Demon Pass", "

", etc.

 

What's interesting here is that not only is the House using Deem and Pass...it's using Deem and Pass in the organizing resolution...and it's doing so for a bill that hasn't even been written yet.

 

The house is declaring that whatever budget Paul Ryan comes up with has automatically passed the House unless it chooses to pass something else. A budget that no one has ever read, because it won't exist for at least another month, will pass the House today. And on top of that, it's done without an explicit vote on it. And on top of that, it's done in the organizing resolution, without which the House doesn't function. It's actually kinda impressive.

 

If I ever get into Congress, I'm remembering this one. May as well just try to get every priority I have done in the organizing resolution, that way there are zero unpalatable votes. Get a public option in there, get the Afghanistan war ended, get a budget passed, infrastructure bank created, and I don't even have to have a bill to vote on, it's already passed. No hearings, no delaying tactics, it's beautiful.

 

Anyway, I'm glad that we've had pages and pages of Republican complaints about how evil this all is. Otherwise, I'd get to make sarcastic posts saying "It's different now, circumstances change, blah blah. If you have a principle, you stick with it unless you absolutely can't.", and we know that only works for Democrats.

[HuskyCaucasian]

Filibuster Reform Effort Kicks Off Today

Here are the specific filibuster reforms that Senate Democrats, led by Sen. Tom Udall (D-NM), will be pushing beginning this afternoon, obtained by TPM. Spoiler: they include at least one little-discussed item meant to appeal to the minority.

 

As promised, Udall proposes ending secret holds and the right of the minority to filibuster the start of debate, and demanding the "talking" filibuster.

 

But, according to documents provided by Udall's office in advance of his floor speech, it also includes a proposal that guarantees both parties the right to amend legislation -- limiting the majority leader's power to "fill the amendment tree" and block extended debate.

 

"This provision addresses comments of Republicans at last year's Rules Committee hearings," the summary reads. "Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution - it guarantees the minority the right to offer germane amendments."

 

According to the resolution, both the majority leader and the minority leader would have the right to offer up to three germane amendments, with one hour of debate apiece.

 

At first blush, this isn't a huge encroachment on the majority leader's prerogative, but it does guarantee the minority an opportunity to change legislation, which they currently don't have once the tree has been filled.

 

It also includes a provision to limit the amount of time the Senate spends debating nominees after the filibuster's been broken. "Post cloture time is meant for debating and voting on amendments - something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business."

 

Read the summary document here. Read the full text of the legislation here.

Edited January 5, 2011 by Athomeboy_2000