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7x57
02-04-2010, 6:39 AM
You know, I've appreciated everything I've read about Justice Thomas lately. This article (http://www.nytimes.com/2010/02/04/us/politics/04scotus.html?hp) has an interesting tidbit: the Tillman act, which Obama seems to have been talking about in the SOTU address and doesn't seem to have been affected by Citizen's United, appears to have some history resembling that of the Second Amendment. More segregation law.

Is the NY Times even allowed to mention this kind of stuff? :D


Justice Defends Ruling on Finance

By ADAM LIPTAK
Published: February 3, 2010

WASHINGTON — In expansive remarks at a law school in Florida, Justice Clarence Thomas on Tuesday vigorously defended the Supreme Court’s recent campaign finance decision.

And Justice Thomas explained that he did not attend State of the Union addresses — he missed the dust-up when President Obama used the occasion last week to criticize the court’s decision — because the gatherings had turned so partisan.

Justice Thomas responded to several questions from students at Stetson University College of Law in Gulfport, Fla., concerning the campaign finance case, Citizens United v. Federal Election Commission. By a 5-to-4 vote, with Justice Thomas in the majority, the court ruled last month that corporations had a First Amendment right to spend money to support or oppose political candidates.

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.

He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”

Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.

“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”

“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

Justice Thomas would not directly address the controversy over Mr. Obama’s criticism of the Citizens United ruling or Justice Samuel A. Alito Jr.’s mouthed “not true” in response. But he did say he had stopped attending the addresses.

“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”

“One of the consequences,” he added in an apparent reference to last week’s address, “is now the court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.”


One wonder if this signals anything about how he'd respond in the *highly unlikely* event that anyone managed to challenge any other segregation law before the court. :43:

7x57

yellowfin
02-04-2010, 6:57 AM
Something tells me he probably wouldn't be too fond of a certain law designed by Irish gangsters to make Polish and Italians easier to rob.

liketoshoot
02-04-2010, 7:19 AM
sounds like the Supreme Court is not a fan of mr. obama.

Telperion
02-04-2010, 7:45 AM
After the treatment they received last month, I expect none of the justices will attend the 2011 SOTU.

yellowfin
02-04-2010, 8:00 AM
Do we have any cases pending to strike down Wickard? That would be a nice little present for them to give the Chicagoland jerk.

7x57
02-04-2010, 8:17 AM
Something tells me he probably wouldn't be too fond of a certain law designed by Irish gangsters to make Polish and Italians easier to rob.

WhatEVER could you be talking about? :43:

Will we live to see the Left try to argue publicly that as it was about white-on-white discrimination it doesn't matter? :rofl:

7x57

Roadrunner
02-04-2010, 8:27 AM
Something tells me he probably wouldn't be too fond of a certain law designed by Irish gangsters to make Polish and Italians easier to rob.

I missed that, please enlighten me.

bulgron
02-04-2010, 8:30 AM
I missed that, please enlighten me.

He's talking about the New York Sullivan laws. Irish thugs kept getting shot by the people they were trying to rob. Consequently, they bought some politicians who passed gun control ordinances that disarmed the Irish thugs' prey.

ETA: By the way, California's refusal to place a 2A equivalent in the state's constitution, and all subsequent gun control measures, are based in the desire to disarm African Americans, Hispanics and Native Americans. That things have progressed to the point where non-politically connected whites are also disarmed just means that we've shot straight past racism and right into classism. But it's all the same thing: power and control and a desire to disarm people you don't like.

jdberger
02-04-2010, 8:37 AM
I missed that, please enlighten me.

Think of a restrictive gun control law in a (former) gangster infested part of the country in the early 20th Century. BIG city!

Now let's run some Irish names...

O'Malley Act? No.
O'Shea Act? No.
Murphy Act?
Kelly Act?

O'Sullivan Act?.......

Sullivan Act! (http://en.wikipedia.org/wiki/Sullivan_Act)

Bah! Bulgron beat me to it.....

Roadrunner
02-04-2010, 8:50 AM
Thanks, I didn't know all of the details so the Sullivan Act completely escaped me.

yellowfin
02-04-2010, 8:58 AM
Will we live to see the Left try to argue publicly that as it was about white-on-white discrimination it doesn't matter? :rofl:We had better get a suit together ASAP to do it, to attack on both fronts at about the same time. It's actually more vulnerable than California's system because it totally infringes on pistol ownership from the get go: not only is it a may issue license to carry, it's a may issue license to own, and one purposefully excessively complicated to deter applicants. That's even more Constitutionally questionable and has even more possible points to base further litigation from that can benefit CGF's efforts in CA, and it will have to go all the way to the circuit and at least 50% chance the SCOTUS to get done because NYS' courts 100% will not budge on it.

*Grabs bucket of red paint to draw 30 foot wide (X) on the ground*

CCWFacts
02-04-2010, 9:40 AM
Do we have any cases pending to strike down Wickard? That would be a nice little present for them to give the Chicagoland jerk.

That would be very nice.

I heard the discussion of that during the Roberts nomination hearings. Chuck Shumer was grilling him about, "is Wickard settled law, the same as Brown v. Board of Education?" And Roberts would not commit to those two being equally settled. I was very happy about that.

I'm glad the 2A is being restored. But in many ways the 10A is just as important, perhaps more important, and right now it's basically a warm corpse in the morgue. I'm hoping somehow, someone will give it a big shock to restart the heart before it becomes a cold corpse buried in the ground.

kcbrown
02-04-2010, 3:54 PM
Have I ever mentioned that you guys are completely awesome?

You've changed my mind entirely about corporate speech (not in this thread, but the players are largely the same). I now regard it as being as important to protect as individual speech. Why? Because all speech is worthy of protection. It matters not who originated it.

We have too many restrictions on speech as it is.


The real problem isn't the speech, or where it comes from. It's the fact that the size of the megaphone depends on who's talking, not on the merits of what they say (and who is to decide what the merits of a given bit of speech are, anyway? That way lies tyranny as surely as anything else).

But regulating even that is quite problematic, and can be seen to tread on the right to speak.

It's better to have a problem resulting from too much freedom than one resulting from not enough!


Keep up the good work, ladies and gentlemen!

BigDogatPlay
02-04-2010, 4:49 PM
“Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

If there was ever any doubt that Mr. Justice Thomas knows what he's talking about, this should remove it completely.

It was ALL about race and keeping the blacks (or the Hispanics or the Native Americans) under "control" and away from any semblance of power. Slaughterhouse, Cruikshank... all of them. When Thomas says "we need to look at Slaughterhouse", he means it's got to go. And the above statement proves it.

I am looking forward to him writing the majority opinion on McDonald and putting the biggest nails yet in the coffin of government rights infringement.

yellowfin
02-04-2010, 5:10 PM
Roberts should have responded that Wickard was more like Plessy.

jdberger
02-04-2010, 7:23 PM
Have I ever mentioned that you guys are completely awesome?

<snip>

Keep up the good work, ladies and gentlemen!

It's amazing, isn't it.

It's like an enormous classroom where everyone waits their turn to speak.

I learn something new every day. Today it was Wickard.

I'm honored to be a member of this community.

Peter W Bush
02-04-2010, 7:57 PM
Thomas has become one of my favorite judges in the past few years. Anyone remember how Biden tried to stop him from getting appointed???

kcbrown
02-04-2010, 8:04 PM
It's amazing, isn't it.

It's like an enormous classroom where everyone waits their turn to speak.

I learn something new every day. Today it was Wickard.

I'm honored to be a member of this community.

Likewise.

It's even better than just a classroom. Here, people will debate you, show you where you're wrong and why you're wrong -- and you get to do the same for them if you can. If you've got an open mind in any way, there's a lot that can be learned here.

I think forums such as this are powerful examples of free speech in action, even when such forums are privately run (with the consequence that some users get banned, sometimes to the detriment of the rest, for a number of reasons).

Mulay El Raisuli
02-05-2010, 6:14 AM
I'm glad the 2A is being restored. But in many ways the 10A is just as important, perhaps more important, and right now it's basically a warm corpse in the morgue. I'm hoping somehow, someone will give it a big shock to restart the heart before it becomes a cold corpse buried in the ground.


Are you saying that the 10A is only mostly dead (and therefore is partly alive) needing only a small miracle to get it going again?


The Raisuli

P.S. In a serious vein, I'm clearly going to have to look up Wickard.

7x57
02-05-2010, 6:25 AM
Think of a restrictive gun control law in a (former) gangster infested part of the country in the early 20th Century. BIG city!


Fixed that for ya. :chris:

7x57

7x57
02-05-2010, 6:32 AM
I'm glad the 2A is being restored. But in many ways the 10A is just as important, perhaps more important, and right now it's basically a warm corpse in the morgue. I'm hoping somehow, someone will give it a big shock to restart the heart before it becomes a cold corpse buried in the ground.

At the moment, I don't know of an avenue. But notice what Heller did--even the four dissenting justices accepted Original Public Meaning. I hope the hermeneutic becomes more and more influential in other cases. Pretty much every vested interest there is needs a government powerful enough to give them the regulations they want--that's why regulation is inherently corrupting. The only thing we have on our side is the truth.

We also have to get the conservative justices to be willing to strike down bad law and value the Constitution over stare decisis though, or the Constitution will always be overruled by Unconstitutional precedent. That's why the Chesterton quote is now in my .sig, and why I'm interested in conservative justices signalling that they are willing to be less deferential to decisions that are not merely arguable (where, I suppose, common law insists on stare decisis for consistency and social stability) but clearly ridiculous.

7x57

7x57
02-05-2010, 6:36 AM
But regulating even that is quite problematic, and can be seen to tread on the right to speak.


The way I think of it is that regulation always creates winners and losers, and therefore a way to compete through lobbying instead of through doing better business. That means it's inherently corrupting. In the case of that law, it didn't reduce the amount of money flowing into campaigns--I think 2008 broke all the records, didn't it? What it did do is make the government more able to pick who the government would be.

Pursued resolutely, that's the end of the Republic.


It's better to have a problem resulting from too much freedom than one resulting from not enough!


If only Thomas Jefferson could have realized that--oh, wait, he did. :D

7x57

CCWFacts
02-05-2010, 7:25 AM
Are you saying that the 10A is only mostly dead (and therefore is partly alive) needing only a small miracle to get it going again?

The 10A is in that nether-zone, hovering just above permanent, stone-cold dead. One of the most evil court cases of recent times was the Raich case (http://en.wikipedia.org/wiki/Gonzales_v._Raich) in which the liberal wing of the court said the 10A doesn't exist. To reverse it would mean going against stare decisis of both Wickard and Raich.

And both Wickard and Raich basically said the 10A doesn't exist. The text of the 10A is designed to limit the power of the Federal government, and Wickard and Raich said, "there is no limit. They can say that anything that has an economic impact, however slight, can be regulated as interstate commerce and do whatever they want."

Well, all human activity has an economic impact to some degree. Gay sex requires lube, which must be purchased. Non-gay sex could result in babies, which have an economic impact. Lesbian sex which doesn't require lube has the economic impact of not purchasing lube. Therefore they're all subject to Federal regulation. I'm using a funny example, but in Wickard they said, "if you grow your own feed for your farm animals, that has the economic impact of you not buying it, therefore it's regulatable because the Federal gov't has the power to regulate interstate commerce!" That's parallel to my lesbian example.

In the case of that law, it didn't reduce the amount of money flowing into campaigns--I think 2008 broke all the records, didn't it?

Sure, the amount of campaign spending must be directly proportional to the economic control the government has over the country. Look at their budget today. Everyone knew in 2008 that they would spend like mad, and therefore the most economically profitable thing to do is to lobby and campaign to get that money.

Pursued resolutely, that's the end of the Republic.

Yeah.

7x57
02-05-2010, 8:00 AM
Well, all human activity has an economic impact to some degree.

That's a pretty good reductio ad absurdum of the logic behind the magic wish-granting genie clause (formerly known as the Commerce Clause). I shall have to remember it.

7x57

kf6tac
02-05-2010, 10:47 AM
The 10A is in that nether-zone, hovering just above permanent, stone-cold dead. One of the most evil court cases of recent times was the Raich case (http://en.wikipedia.org/wiki/Gonzales_v._Raich) in which the liberal wing of the court and Justice Scalia said the 10A doesn't exist. To reverse it would mean going against stare decisis of both Wickard and Raich.

Fixed it for you. Can't forget that Scalia concurred, giving what otherwise would have been the minority enough votes to become the majority.

loather
02-05-2010, 11:21 AM
Are you saying that the 10A is only mostly dead (and therefore is partly alive) needing only a small miracle to get it going again?

The chocolate coating makes it go down easier.

vantec08
02-05-2010, 5:41 PM
Like the current economic crunch .. . . a showdown between the judiciary and executive and legislative has been coming for decades. It is being narrowed to constitutionalists vs. party-hacks that shuck and jive the Party Line. At stake is no less than the future of our country and as Newt Gingrich said recently, "for the first time in my life I am genuinely scared. We defeated Nazi Germany, Fascist Italy, and Empire Japan in 4 and a half years - -- now we cant even balance a budget, deliver mail on time, or call an enemy what is it." Negative? yes. True? you bet.

SimpleCountryActuary
02-05-2010, 7:36 PM
The chocolate coating makes it go down easier.

And if that doesn't work, roll it in bacon.

Mulay El Raisuli
02-06-2010, 6:14 AM
Well, all human activity has an economic impact to some degree. Gay sex requires lube, which must be purchased. Non-gay sex could result in babies, which have an economic impact. Lesbian sex which doesn't require lube has the economic impact of not purchasing lube. Therefore they're all subject to Federal regulation. I'm using a funny example, but in Wickard they said, "if you grow your own feed for your farm animals, that has the economic impact of you not buying it, therefore it's regulatable because the Federal gov't has the power to regulate interstate commerce!" That's parallel to my lesbian example.




Having now re-acquainted myself with Wickard & Raich, I must agree.

kf6tac has pointed out the problem that sometimes, ideology gets in the way of good sense.

I fear that 7X57 is correct in that this could be the end of the Republic.


The Raisuli

Mulay El Raisuli
02-06-2010, 6:15 AM
The chocolate coating makes it go down easier.


I'm glad that someone got the joke. :)


The Raisuli

7x57
02-06-2010, 6:36 AM
I'm glad that someone got the joke. :)


A fine joke it was, too, it just wasn't clear where to take it.

Though I'd be extremely happy to tell the Supreme Court that the word commerce "doesn't mean what you think it means."

7x57

yellowfin
02-06-2010, 6:58 AM
The court's credibility on defining commerce went out the window when they repeatedly ruled that Major League Baseball isn't a business.

loather
02-06-2010, 9:40 AM
The court's credibility on defining commerce went out the window when they repeatedly ruled that Major League Baseball isn't a business.

Just goes to show that they're capable of being bought, just like anyone else.

Never underestimate the power of a rabid sports fan.

To be honest though, I think the first ruling was quite out-of-character, and the rest may have been holding with stare decesis. With a court willing to overturn prior (ill-contented) precedent, maybe we can breathe some life back into our country.

Mulay El Raisuli
02-07-2010, 4:07 AM
A fine joke it was, too, it just wasn't clear where to take it.

Though I'd be extremely happy to tell the Supreme Court that the word commerce "doesn't mean what you think it means."

7x57


Oh, VERY good! :)


The Raisuli