March 03, 2009
Democrats Still Hate the Rule of Law

The push to give the District of Columbia a vote in Congress is one more example in a long line, of antipathy for the rule of law.

The Constitution is clear that all members of the House of Representatives come from states. Three qualifications are listed for its members: that they are 25 years old, citizens of the U.S. for 7 years, and inhabitants of the state they represent in Congress. And it gives a method for apportionment of Representatives, and that it is per state.

It is absolutely and unequivocally unconstitutional for anyone who is not representing a state to be a member of the House. And yet, the Senate voted to give D.C. a seat in the House. Incredibly, most news outlets say things like "opponents say" it is unconstitutional, or at most, that it is "probably" unconstitutional. No: there is simply no possible way for it to be constitutional.

If you think D.C. should get a seat in the House, fine, but there's only one legal way to do it: amend the Constitution. That's what we did to give D.C. electoral college representation.

I am not against this. D.C. was never intended to be heavily populated, but it is, and so reconsidering the original purpose of it, especially in light of the representation of its inhabitants in the federal government, is reasonable. But it is absolutely illegal for D.C. to have a vote in the electoral college or House of Representatives without amending the Constitution.

Many people believe that the law should be followed. We believe that if the Constitution says to do something, you should do it. We believe that the law matters. If you don't like the law, change it, but don't ignore it. Ignoring the law is rule of men; following it is rule of law.

The problem with rule of men is that it is arbitrary, and therefore not a reliable protector of rights. Your rights as expressed in the Constitution are only as valuable as the inclination of your government officials to agree with them. That is not how a constitutional republic works. It is not how your rights are protected.

Democrats -- at least, their leadership -- almost universally follow the rule of man, and reject the rule of law. This is why you have Democrats decrying the Lilly Ledbetter decision, and their liberal justices opposing that decision -- despite the fact that it was correct according to the law -- because they believed the law should not be what it is.

That is why you have a liberal justice who writes a book explaining why he doesn't follow the Constitution.

This is why you have President Obama and his people opposing an individual right to keep and bear arms (despite his claims to the contrary: his actual positions, such as favoring the DC gun ban, speak more loudly than his dishonest rhetoric).

This is why you have Mayor Nickels trying to ban guns on city property, despite state law saying that's illegal.

This is why you have the Democrats throwing the 10th Amendment in the trash as they rapidly expand the power of the federal government with complete disregard for its constitutional limits.

And note too that this is heavily tied to the Western European and North American style of socialism, which believes that if we just get the smartest people together to come up with the best ideas, and give them the power to implement those ideas, that this is the best way to govern society.

But it's antithetical to liberty. Our system does not believe in blindly following the "best" ideas, because we know what's "best" is in the eye of the beholder. We believe in two things: protecting the rights of individuals, and after that, leaving the rest up to the will of the majority.

The Democrats don't believe that. If they did, they would not ignore the Constitution or federal law whenever they didn't like what it said.

(As this D.C. voting plan not only harms the rule of law which protects our rights, but also facially and illegally reduces the relative representation of all states (except Utah), I've added it to my list of liberties lost under Obama.)

Cross-posted on <pudge/*>.

(Also see Jim Miller's post on the subject.)

Posted by pudge at March 03, 2009 09:51 AM | Email This
Comments
1. What's different about Utah?

Posted by: Palouse on March 3, 2009 10:40 AM
2. Hugh Hewitt, who is an attorney who agrees with most of us on this one, had Jim Pence, I believe on. He, or the pol he had on if I am incorrect, says this one passes muster.

Posted by: swatter on March 3, 2009 10:43 AM
3. Palouse, ah, heh. Utah gets an additional representative out of the deal, basically so that the Dems won't be seen as stacking the Congress in their own favor. Of course, this type of thing should be irrespective of partisan politics, but that's unrealistic in practice.

Posted by: pudge on March 3, 2009 10:44 AM
4. swatter, "passes muster" in what way?

Posted by: pudge on March 3, 2009 10:48 AM
5. I'll take "representation of 600000+ taxed citizens" as a 'lost liberty' under Obama over the lost rights of Habeas Corpus, freedom from unwarranted search and seizure, and freedom from cruel and unusual punishment (i.e. torture) under W.

Posted by: habeas testis on March 3, 2009 11:51 AM
6. It won't be long before DC gets their own Senators, too.

pudge, the Ds wouldn't be passing this bill without some shred of argument it was legal. The R legislator says there is a good shot at it. I just can't explain the rationale.

Posted by: swatter on March 3, 2009 11:52 AM
7. swatter: No, there is no shred of argument that it is legal.

habeas: tu quoque is a logical fallacy.

Posted by: pudge on March 3, 2009 11:57 AM
8. swatter, and BTW, I find "the Ds wouldn't be passing this bill without some shred of argument it was legal" to be really hilarious. You can't believe that, can you?

Posted by: pudge on March 3, 2009 12:00 PM
9. The D's obviously at one point felt that a constitutional amendment was needed.

Indeed, if I remember correctly, a constitutional amendment was passed out of congress to this effect but was never ratified by enough states to make it take effect.

Posted by: Gary on March 3, 2009 12:53 PM
10. If DC wants representation then cede the entire district back to Maryland. Then give Utah and Maryland one extra rep.

Precedence exists for ceding parts of the district back to the state it was created from - see Arlington County Virginia.

Posted by: arby on March 3, 2009 01:12 PM
11. http://hughhewitt.townhall.com/talkradio/Show.aspx?RadioShowID=5

There is your link to the Mike Pence interview. Go for it. Whether you agree that Pence says there is a shot at being constitutional (he thought Scalia may be the biggest supporter) or not, there is no desire by me to have a meaningless argument. Suffice to say Pence says they have a shot and he gives his reason.

Posted by: swatter on March 3, 2009 01:21 PM
12. Consider that liberalism is about freedom from constraints (religion, community, culture, race, sex), is it any surprise that freedom from law is part of it? It's not freedom as in Ordered Liberty, but Emancipation, plain and simple.

Posted by: Tomas de Torquemada on March 3, 2009 01:22 PM
13. Dear habeas testis -

Your slightly insane post exhibits indication of a remnant case of BDS, a scourge thought to be eradicated by now. Please get treatment immediately, for you cannot currently sense an increased loss of liberties both Constitutionally and his financial train-wreck, thanks to loss in confidence in The Supreme One.

Why are you still worried about loss of Habeas for terrorists at Gitmo, since they will be soon released into your neighborhood.

Get over it already.

Posted by: yaddacubed on March 3, 2009 01:52 PM
14. Right on, @5. Republicans smash law and grab power. It's in their twisted DNA. Here's a blast from the past about Nixon's dirty tricks:

"The ideological Organizations Project, as the IRS project was known, investigated Left-wing groups ... Eventually, before the project ended in 1967, the IRS removed the tax-exempt status from seven ... organizations. Not only that, but through audits and the threat of audits, the IRS ... blatantly attacked and harassed ideological organizations. Not since the Roosevelt administration's efforts to harass America First had government tried to harass legitimate political and idiological groups."

- via Gregory L. Schneider, Emporia State University, The Conservative Century, Rowman & Littlefield, 2009

Posted by: Cons & Neocons on March 3, 2009 02:10 PM
15. I tried to play the ellipsis game @14, the game perfected by Media Matters, Air America, and every loon left blog, but "1967" gives the game away, except to ignorant fools who learned history from the NEA and WEA. Here's the rest of the story:

"The ideological Organizations Project, as the IRS project was known, investigated Left-wing groups as well, but its main focus, as historian John Andres has written, 'remained on right-wing organizations.' Eventually, before the project ended in 1967, the IRS removed the tax-exempt status from seven Right-wing organizations. Not only that, but through audits and the threat of audits, the IRS and the Kennedy administration blatantly attacked and harassed ideological organizations. Not since the Roosevelt administration's efforts to harass America First had government tried to harass legitimate political and idiological groups."

- via Gregory L. Schneider, Emporia State University, The Conservative Century, Rowman & Littlefield, 2009

Posted by: Oopsie! on March 3, 2009 02:15 PM
16. The District of Columbia was originally carved out of the States of Virginia and Maryland. The Civil War of 1861-65 severed the Virginia portion and it now Arlington, VA.

I do not see a problem with areas of DC which were once a part of Maryland be given the same rights as those who live in the part that was once (and now again) part of Virginia.

Folks in Arlington elect representatives and senators from Virginia. The folks across the Potomac should elect representatives and senators from Maryland.

Why is this so complicated? Does it have more to do with power than representation?

Posted by: deadwood on March 3, 2009 02:29 PM
17. @16:

I am skeptical that this would be legitimate, especially if someone in DC tried to run for office in Maryland, since that person would not be an inhabitant of Maryland as the Constitution requires.

However, it's far closer to constitutional than this plan, which has no semblance of constitutionality.

swatter, thanks for the link. Listening now.

Posted by: pudge on March 3, 2009 02:46 PM
18. I am not so sure a government reservation is as completely severed from the State in which it exists as that Pudge.

As far as I know, military personnel living on base still vote in the States those bases are located. I believe that the District of Columbia has the same constitutional status as any other federal reservation.

Posted by: deadwood on March 3, 2009 02:49 PM
19. Pudge is absolutely right about this one:
There is only one legal way to give D.C. any representation in Congress:
Amend the Constitution.

If this attempted travesty passes and get signed by the Pres, we can only hope that when it gets to the Supreme Court they will unambiguously declare it unconstitutional.

SIDEBAR: If the ''give D.C. a member of Congress just 'cause we think they should have one'' effort sticks, consider what all ELSE might be attempted in direct contravention to the Constitution.... and be afraid; be VERY afraid.

Posted by: Methow Ken on March 3, 2009 02:56 PM
20. swatter, listening to hour two of the Feb. 24, 2009 broadcast.

Pence's argument is that the Congress has the power to treat citizens of the District as citizens of a state for purposes of the commerce clause. He doesn't go into detail, but I found the Ken Starr analysis he was probably referring to.

Starr and his coauthor, Patricia Wald, start off with a red herring: we are committed to republican representative government, and the framers didn't intend to deny the residents of the District their right to representation. Irrelevant, of course, because the question at hand is whether this (or any) method of PROVIDING that is constitutional, without amendment.

Then they reference the Constitution's claim that "Congress shall have power ... to
exercise exclusive legislation in all cases whatsoever." Surely, that cannot mean giving D.C. its own President that has authority to ratify treaties for the whole country, or giving it as many representatives in Congress as all the other states combined. Obviously, this power is limited by the rest of the Constitution.

So we still have not reached our logical hurdle. And they never get to it. They simply handwave at it, never addressing the fundamental point that Article I requires all representatives to inhabitants of the STATE they represent.

The closest they come is in referencing a case that recognized the right of Congress to extend federal court jurisdiction to not just cases "between citizens of different states" (as the Constitution says), but also citizens of the District itself.

The problems here are multiple. First and most obvious is that while we do have unassailable evidence that representation in Congress was intended to be limited to States, we have no evidence that they intended to so limit the jurisdiction of the courts. Indeed, Amendment XI implies that Article III, Section 2 is not intended to be taken as an exclusive list of jurisdictions, else Amendment XI would not have been necessary.

Being me, I went to the original case cited, National Mutual Insurance Co. v. Tidewater, to see what it had to say. Indeed, the dissenters made my very point above: that this is about whether Article III describes the "outer limits of that power, or is merely a listing of the types of jurisdiction with which Congress may invest federal courts. ..."

Second, is that court jurisdiction is simply not nearly the same thing as representation in Congress. Jurisdictional matters are often complex and subobvious, and require study and rulings (and amendments) to determine what the facts are. Representation is black and white: inhabitants of STATES.

A fair reading of the decision cited above will demonstrate this, too: that case was mostly about whether this specific power could be conferred without violating the Constitution. And the majority even wrote, "had [the Founders] thought of [the special problems of the District], there is nothing to indicate that it would have been referred to as a state, and much to indicate that it would have required special provisions to fit its anomalous relationship into the new judicial system, just as it did to fit it into the new political system."

The majority then goes on to say that extending the jurisdiction of the courts to the District is like extending it to bankruptcy. Again, the majority is saying that there is evidence in both precedent and text of the Constitution that gives the Congress the power to extend the jurisdiction of the federal courts. There is NOTHING in text or precedent that gives Congress the power to extend membership in the House to non-states.

Pence is wrong, Starr is wrong, and Scalia won't buy it, I guarantee.

Posted by: pudge on March 3, 2009 03:42 PM
21. deadwood: no, the District is not the same as a federal reservation. Reservations are contained within states, and are a part of those states, even if state jurisdiction over them is limited.

But the District is not in any state.

Posted by: pudge on March 3, 2009 03:46 PM
22. This law means nothing, and it won't pass muster with the Supreme Court in the slightest.

However, this initiative is simply a political move, and it has nothing to do with constitutionality or passing the court system. Despite far-right wingnut bleatings to the contrary, the Obama Administration doesn't consist of a bunch of political amateurs, and they've done the political calculus here. This has to do with effectively bringing the issue onto the national stage. A push for representation of citizens of DC has been languishing for years, and I doubt that there would have been any attention paid to this idea if something like this didn't happen.

What is neat about this, of course, is that once the issue is out Republicans are going to have to challenge this law, and then state governments controlled by Republicans will be forced to explain why they don't want to amend the Constitution to grant voting rights to DC.

Bleat all you want about this being "illegal"... but this is political maneuvering to get to an end goal, and not a goal in and of itself.

Posted by: demo kid on March 3, 2009 05:02 PM
23. Some idiot or ignorant Marxist Slaver wrote:

Here's a blast from the past about Nixon's dirty tricks:

"The ideological Organizations Project, as the IRS project was known, investigated Left-wing groups ... Eventually, before the project ended in 1967

Now, here's the question: when did Nixon's term as president begin? Before or after 1967?

Facts are difficult things to ignore, unless you've had your Obamalobotomy!

HOPE AND CHANGE!

Posted by: Shanghai Dan on March 3, 2009 05:07 PM
24. demo kid: yes, I surmised the same thing when I heard it, that this was about highlighting the issue. It does not change the fact that they are voting for an unconstitutional law, however. Something about ends justifying means etc. ... even if you're right, it is still passing/signing a law that violates the Constitution. There's no excuse for it.

What is neat about this, of course, is that once the issue is out Republicans are going to have to challenge this law, and then state governments controlled by Republicans will be forced to explain why they don't want to amend the Constitution to grant voting rights to DC.

That's nonsense. Didn't I just express vehement and reasoned opposition to this bill, while saying that I would probably be in favor of a constitutional amendment? Many Republicans would be in favor of such an amendment. Many wouldn't of course, but that's irrelevant, because there will be enough states to ratify without those that might oppose it even taking the issue up.


(Dan@23, BTW, he was trolling ... see his next post, he was pretending to be a liberal.)

Posted by: pudge on March 3, 2009 05:13 PM
25. Sorry Pudge, late night drinking Chinese White Wine (it's really distilled wine, like cognac is distilled champagne) with some friends at some of the TRL bars in Shanghai...

Hey, at least it's not going to snow here on Friday like you all are going to get!

Posted by: Shanghai Dan on March 3, 2009 06:30 PM
26. @24: How many Republicans would be willing to create a safe Democratic seat? The Utah seat isn't assured, especially since redistricting will happen in 2010. There's a vested interest in letting the subject die a quiet death.

Regarding violating the Constitution, both parties do it. Take the Schiavo case, for example. No matter how you come down on the issue, Republicans proposed violating the separation of powers under the Constitution for political gain in that case by dictating the actions of a court.

Posted by: demo kid on March 3, 2009 10:33 PM
27. demo kid:

How many Republicans would be willing to create a safe Democratic seat?

if done the right way, if done for the sake of voting rights? I suspect enough to get it ratified.

Regarding violating the Constitution, both parties do it.

First, that is irrelevant to the discussion at hand.

Second, this is not so much about the Constitution itself as it is about the rule of law, and no, the Democrats have an unwritten policy that ALMOST ALL of them follow that ignores the rule of law, whereas many if not most Republicans respect the rule of law.

Third, no, there was absolutely no violation of the Constitution involved, or proposed, in what the GOP Congress did in the Terri Schiavo case. You're wrong. (Unless you mean the Florida legislature, in which case I have no idea either way, as I never paid much attention to that.)

Posted by: pudge on March 3, 2009 11:16 PM
28. if done the right way, if done for the sake of voting rights? I suspect enough to get it ratified.

Then why hasn't it been done under a GOP Congress? I'd expect that folks that crow about taxation without representation would be the FIRST folks to talk about granting DC a vote in Congress.

First, that is irrelevant to the discussion at hand.

Well, you say that, but then you state...

Second, this is not so much about the Constitution itself as it is about the rule of law, and no, the Democrats have an unwritten policy that ALMOST ALL of them follow that ignores the rule of law, whereas many if not most Republicans respect the rule of law.

...which is bull. You're making broad generalizations that are unfounded, and simply betray your biases. The Supreme Court makes decisions about the constitutionality of laws in this system, NOT an armchair quarterback like yourself.

Third, no, there was absolutely no violation of the Constitution involved, or proposed, in what the GOP Congress did in the Terri Schiavo case. You're wrong.

Even the Republican leadership at the time stated that it shouldn't be a prototype for future legislation. Aside from the fact that it was for a single person, which is HIGHLY improper for laws passed by Congress, the original proposal by Republicans specifically directed the courts to grant a stay of the court order. Congress isn't granted the power of the judiciary.

Again, both sides indulge in these types of violations. I've avoided bringing up plenty of the colorful violations of the Bush regime, but I'm certain that we can find plenty of nasty examples on both sides pretty easily.

Posted by: demo kid on March 3, 2009 11:38 PM
29. Cede the District of Columbia back to Maryland for the purposes of congressional representation. Maryland gets one extra seat in the U.S. House, which will be chosen in a special election immediately from the voters of D.C. In future years, D.C. voters will be able to vote on Maryland U.S. Senators as well.

As for Utah, it can simply be ignored under this proposal. No extra seat for Utah right now. In all likelihood, Utah will pick up a seat after the 2010 census.

Posted by: Richard Pope on March 4, 2009 12:24 AM
30. Richard, I believe that would be constitutional, EXCEPT that it would still not allow one of those residents in D.C. to actually run for congressional office themselves. The ceding back to Maryland cannot be "for the purposes of representation," it has to actually be a part of the state, else Eleanor Holmes Norton would not be an "inhabitant" of the State she is seeking to represent.

Posted by: pudge on March 4, 2009 12:31 AM
31. demo kid:

Then why hasn't it been done under a GOP Congress?

Why wasn't it done for decades under a Democratic Congress? Why ISN'T it being done under a Democratic Congress NOW?


I'd expect that folks that crow about taxation without representation would be the FIRST folks to talk about granting DC a vote in Congress.

Sure. So why do you think it will be so widely opposed?


...which is bull. You're making broad generalizations that are unfounded

No, kid. I am making specific allegations and presenting evidence to back them up. I am generalizing from those specific allegations, but it's impossible not to given not only how universal they are from Democratic leaders, but how little the Democrats themselves care.

Find me one Democrat who said, "the law said Lilly Ledbetter can't sue, so she can't." No, they said, "but she was wronged, so the Court should find in her favor."

While you will, of course, find Democrats who point out that Obama and Nickels and Newsom and other politicians who violate and favor violations of the Second Amendment, it is still very commonplace for Democrats to do it, and they take almost no heat from it in their own party.

And you won't find a single Democrat anywhere who will publicly admit the clear and unassailable fact that Social Security is unconstitutional. They don't CARE that it is unconstitutional.


The Supreme Court makes decisions about the constitutionality of laws in this system, NOT an armchair quarterback like yourself.

Incorrect. The Supreme Court only decides what is holding legal precedent on the system itself, but it does not decide in any other way what is and is not constitutional. As (Supreme Court Justice) Felix Frankfurter said, the hallmark of constitutionality is the Constitution itself, and not what the court has said about it.

James Madison said the Constitution is for any citizen to read and interpret.

No, I am as capable and able to interpret the Constitution as anyone. If you have an actual argument against my interpretation, present it. But trying to subvert my interpretation by saying only the Court decides constitutionality is not only incorrect, but it's fallacious besides.


Even the Republican leadership at the time stated that it shouldn't be a prototype for future legislation. Aside from the fact that it was for a single person, which is HIGHLY improper for laws passed by Congress ...

Not illegal or unconstitutional, hence not relevant. I don't really care though, as this is beside my point, but I'll briefly address the rest to show I am not ducking it:


the original proposal by Republicans specifically directed the courts to grant a stay of the court order. Congress isn't granted the power of the judiciary.

Congress is not granted powers to decide cases, but broad powers beyond that. Read Article III, Section 2: "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." So, in the Schiavo legislation, the Congress mentioned specific exceptions and regulations.

Is it distasteful, unwise, and worse? Probably. Unconstitutional or violating any laws? Probably not.


Again, both sides indulge in these types of violations.

And the Democrats make it an essential part of their governing philosophy.

Whether it's banning guns in Seattle city property or banning them in D.C.; whether it's Social Security or Roe v. Wade; whether it's ALMOST EVERYTHING IN THE STIMULUS PACKAGE; whether it's giving a representative to a NON-STATE; the Constitution and law simply do not matter to the Democrats, as a whole.

You'll find some Republicans for which this holds true too, but more often than not, you'll find that Republicans can be swayed by pointing to specific laws or sections of the Constitution. You might get them to disagree with the Constitution or law, and want it to be changed, but if you can convince them of what the law says, most of the time, Republicans will not push to violate the law.

This does not work for Democrats.

I can think of a few areas where it doesn't work for many Republicans, either. For example, flag burning. Many Republicans think if you burn a flag you should be arrested. But even this exception proves the rule: for EVEN MORE Republicans, you can point out that the First Amendment protects it, and so they respond, "well, let's amend the Constitution."

But for Democrats, there is no issue I can think of where showing them the law disagrees with them DOES work. Can you? Seriously? Can you think of any issue where Democrats could be convinced that because the Constitution disagrees with them, that they therefore should not pass a law that disagrees with the Constitution?

Posted by: pudge on March 4, 2009 12:51 AM
32. Sheesh, pudge, you have a bundle of energy or what? Hats off to you.

Hats off to you, too, because when I read these legal arguments and briefs, I have no clue sometimes how they came about.

Posted by: swatter on March 4, 2009 07:23 AM
33. Pudge,
I agree that if Congress wants DC to have a representative then the proper form of implementation is a Constitutional amendment. This is how it is set up to work.

I do take a minor quibble with your shot at the end. I see this as a Congress led action, not an Obama led action. Obama hasn't proposed it. So to state it is an Obama action is a stretch.

Posted by: tc on March 4, 2009 07:56 AM
34. Breaking News - Partisan hack wingnuts redicover the "rule of law" after 8 years of the Bush Presidency. What's next, caring about the dedicit? accountability? congressional oversite of the executive branch?

Posted by: Robert on March 4, 2009 08:08 AM
35. tc: I don't care who leads it. Obama said he would sign it. You will note on my page that it is listed as being proposed by Congress, not Obama, but it definitely belongs on the list because he is approving of it and making it happen.

Robert: your fallacies are uninteresting. If you don't know why what you said constitutes multiple fallacies, let me know and I will tell you.

Posted by: pudge on March 4, 2009 08:34 AM
36. Er, tc, I should say of course, that Obama has said he WOULD make it happen, if it came to his desk. It looks like it probably won't get to his desk, thankfully.

Posted by: pudge on March 4, 2009 08:36 AM
37. tc, and one more thing (my brain is a little slow, I just woke up), my list is also not necessarily about liberties lost BECAUSE OF Obama, but about those lost UNDER Obama. Again, the list differentiates by saying how each thing comes about.

Posted by: pudge on March 4, 2009 08:39 AM
38. Pudge@31 challenges, "Find me one Democrat who said, 'the law said Lilly Ledbetter can't sue, so she can't.'"

I assume you mean she shouldn't win, not she can't sue; she certainly had the right to sue. Beyond that, it was reasonable to interpret the law to find in her favor; indeed, nearly half of the Supreme Court did so. Their argument wasn't "We like her cause so we'll rule for her" as you keep implying; their argument was that the law was in her favor. Of course, the majority of the Court ruled against her, but she, and critics of the Court's reasoning, were arguing the legal issue. Why do you keep implying otherwise?

"I am as capable and able to interpret the Constitution as anyone."

Congratulations on your high self-esteem. You certainly have the right to interpret the Constitution, and it might even be your civic duty, but anyone with your background who would make a statement like that is prima facie deluded.

"The Supreme Court only decides what is holding legal precedent on the system itself, but it does not decide in any other way what is and is not constitutional."

There is no practical difference. The words of the Constitution are just squiggles on a page unless someone interprets them, and that role is assigned to the Supreme Court, so the Court defines what is constitutional. Anyone is, of course, free to disagree with their decisions.

Posted by: Bruce on March 4, 2009 08:39 AM
39. I assume you mean she shouldn't win, not she can't sue

No. Learn abut the case. The ruling the Supreme Court upheld is that she COULD NOT SUE because the discriminatory act was more than 180 days old.


Beyond that, it was reasonable to interpret the law to find in her favor

Incorrect.


indeed, nearly half of the Supreme Court did so

And in Ginsburg's dissent, she tacitly admits that she was ignoring the law by devoting the bulk of her argument to the notion that the law was insufficient, rather than that the case was allowable under the law.


Their argument wasn't "We like her cause so we'll rule for her" as you keep implying

Yes, actually, it really was. Read Ginsburg's dissent.


Why do you keep implying otherwise?

Because I actually read Ginsburg's dissent.


Congratulations on your high self-esteem

You misinterpret my words.


You certainly have the right to interpret the Constitution, and it might even be your civic duty, but anyone with your background who would make a statement like that is prima facie deluded.

Incorrect. Anyone who would NOT make such a statement, barring those with significant disabilities, is deluded. Further, anyone who thinks that someone's formal educational background is relevant to the issue, is deluded.


There is no practical difference.

False.


The words of the Constitution are just squiggles on a page unless someone interprets them

And they were interpreted by the people who wrote them down, so your claim here has no meaning.


... and that role is assigned to the Supreme Court

No, it's not. Where did you get such a stupid idea? The Supreme Court's role is not to determine what the Constitution means, it is only to determine what the Constitution means *in determining cases brought before it.* The President's role is to interpret the Constitution. Congress' role is to interpret the Constitution. Every voting citizen's role is to interpret the Constitution.


... so the Court defines what is constitutional.

No, it does not. It never has. It only defines what is HOLDING. Again, Justice Frankfurter says you're wrong, and he was ON the Supreme Court. For many years.

Only the Constitution defines what is constitutional and unconstitutional. The Supreme Court only defines how the legal system should act in regards to the Constitution.

This is not an insigificant or merely theoretical point. It reminds us that the Supreme Court can, and often is, wrong, and that we as the people don't have to put up with it, pace the words of the Declaration.

But thank you, Bruce, because in making your argument that constitutionality is only what certain robed men and women say it is, you are further advancing my point that Democrats hate the rule of law, and prefer the rule of men.

Posted by: pudge on March 4, 2009 08:59 AM
40. Bruce, I thought an example might help you here, so a quick one.

According to you, if the Supreme Court today says that slavery is not unconstitutional, then it therefore is not unconstitutional.

You're clearly wrong. I hope this example helps show you that.

Posted by: pudge on March 4, 2009 09:22 AM
41. @31: Regarding the Lilly Ledbetter decision...

Find me one Democrat who said, "the law said Lilly Ledbetter can't sue, so she can't." No, they said, "but she was wronged, so the Court should find in her favor."

Lilly Ledbetter COULD sue, and did in fact win at a jury trial. The objection in the appeals court had to do with whether the fact that her salary was lower was actually discrimination, or whether she needed to sue when she was denied a raise. It was taken up by the Supreme Court, and the 180-day limit on damages was held up by a vote of 5-4. The dissent, however, argued that pay discrimination is distinctly unlike some sort of immediate punitive action, and filing when some distinct event took place was next to impossible.

You read it your way, I read it mine. Personally, I think it was more a conservative decision to allow businesses to avoid paying damages to underpaid workers, and had nothing to do with "upholding the law". However, the law passed by Congress clarified the fact that in this case, the statute of limitations resets for each paycheck. Did it rewrite the decision? Absolutely not. It merely distinguished what was meant by the "statute of limitations".

Conversely, about the Schiavo case...

Not illegal or unconstitutional, hence not relevant. I don't really care though, as this is beside my point, but I'll briefly address the rest to show I am not ducking it:

It's not beside your point. You condemn an act that clarifies a statute of limitations, while defending a Republican proposal that SPECIFICALLY gives the court a *positive* obligation, instead of a negative obligation through regulation.

Congress is not granted powers to decide cases, but broad powers beyond that. Read Article III, Section 2: "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." So, in the Schiavo legislation, the Congress mentioned specific exceptions and regulations.

VERY specific. Even as written it violates legal principles by being completely discriminatory and retroactive, and by changing the jurisdiction of a court case when legislators don't like the results. I'm sure some eager young constitutional scholar has argued that Due Process was violated fifteen ways to Sunday here.

----

However, after going back and actually looking at this situation, not only is it clear that it is a tempest in a teapot, I think that far-right-wingnuts like you are lying about the facts and blowing it out of proportion in your frantic and pathetic attempts to score political points.

Why?

House Urged to Set Aside Politics to Give D.C. Vote, May 4, 2005

Bipartisan backers of legislation to grant the District a vote in Congress yesterday urged House leaders not to allow political divisions to thwart efforts to give representation to 550,000 U.S. citizens in the nation's capital.

Rep. Thomas M. Davis III (R-Va.) introduced the D.C. Fairness in Representation Act at a news conference and said he hoped to have lawmakers vote on it by December.

"It's fair. It's constitutional. . . . Most of all, it is just the right thing to do," said Davis, who chairs a House committee that oversees the District. "Justice should not have to wait, especially not for politics."

Davis was flanked by District Mayor Anthony A. Williams (D), council Chairman Linda W. Cropp (D), 1996 vice presidential nominee Jack Kemp (R) and former House member Susan Molinari (R-N.Y.), all supporters of the bill.

The Capitol Hill event marked the carefully choreographed kickoff of a renewed push to pass Davis's bill, which would temporarily expand the House from 435 seats to 437 to give the District a full voting representative and add a fourth member for Utah, next in line for an additional seat. Under the bill, which died in subcommittee last year, the House would revert to 435 seats for the 2012 election after reapportionment following the 2010 Census.

So yes, I was wrong in that Republicans haven't pushed for it. You were very wrong in assuming that Republicans haven't pushed for *this*.

Game, set, match. So stop whining about how your version of the Constitution is right and mine is wrong. Tautological, circular arguments aren't debate.

Posted by: demo kid on March 4, 2009 10:35 AM
42. Or maybe you could just go back to telling us what "real Scotsmen" would do.

Posted by: demo kid on March 4, 2009 10:38 AM
43. demo kid:

Lilly Ledbetter COULD sue, and did in fact win at a jury trial.

And then the appeals court ruled she COULD NOT sue. This was affirmed by the Supreme Court: "Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter's claim is untimely." Saying the claim is "untimely" is another way of saying she can't sue under this statute.


The dissent, however, argued that pay discrimination is distinctly unlike some sort of immediate punitive action, and filing when some distinct event took place was next to impossible.

Yes, exactly: Ginsburg argued the actual law was insufficient, and therefore should be ignored. You're agreeing with me here.


However, the law passed by Congress clarified the fact that in this case, the statute of limitations resets for each paycheck. Did it rewrite the decision? Absolutely not. It merely distinguished what was meant by the "statute of limitations".

It changed what the law said to be what Ginsburg WANTED it to say, since it DIDN'T say it before.


It's not beside your point.

Yes, it really really is, because my point is not that the Republicans never ignore the rule of law. Therefore giving examples of Republicans ignoring the rule of law, even if those examples are valid, is beside my point.


You condemn an act that clarifies a statute of limitations, while defending a Republican proposal that SPECIFICALLY gives the court a *positive* obligation, instead of a negative obligation through regulation.

I did not defend it per se. I was and remain against it. I only defended it in the limited sense of saying that it violated neither the Constitution nor law. And you provided no argument that it does violate any law or constitutional provision.


However, after going back and actually looking at this situation, not only is it clear that it is a tempest in a teapot, I think that far-right-wingnuts like you are lying about the facts and blowing it out of proportion in your frantic and pathetic attempts to score political points.

You're clearly wrong.


So yes, I was wrong in that Republicans haven't pushed for it. You were very wrong in assuming that Republicans haven't pushed for *this*.

Um. So you missed the part where I criticized Republican Congressman Mike Pence and Republican Judge Kenneth Starr for their support of this Act? I never made such an assumption, so I cannot be wrong in it.


Game, set, match.

Again, you are attacking a straw man here. I not only never made the argument that Republicans don't do the same thing, I explicitly stated they DO. But my argument, which is well-founded, is that this is ENDEMIC to Democrats. That is why I asked for -- and have not received -- an example where Democrats could be convinced to not push for a law if it was proven to them that it was unconstitutional. Can you come up with such an example?


So stop whining about how your version of the Constitution is right and mine is wrong. Tautological, circular arguments aren't debate.

Now YOU are lying. I never made a tautological argument. I explicitly back up all of my claims. YOU refuse to discuss my claims on their merits, and in doing so feel free to pretend that it is merely my opinion. That is dishonest.

Posted by: pudge on March 4, 2009 10:58 AM
44. Pudge writes, "Ginsburg argued the actual law was insufficient, and therefore should be ignored. You're agreeing with me here."

No, he is not agreeing with you. I'm not a lawyer, but I believe there is a legal principle that assumes, roughly, that laws are intended to mean something, and should be interpreted with that assumption in cases of ambiguity. I think that was Ginsburg's point. The majority felt the law was not ambiguous.

"I asked for -- and have not received -- an example where Democrats could be convinced to not push for a law if it was proven to them that it was unconstitutional. Can you come up with such an example?"

Of course not, because you are asking for something ridiculous. There are surely things Democrats haven't pushed for because they're unconstitutional -- e.g., a ban on saying mean things about Democrats. But few reasonably intelligent people (I know, that's a setup for you) are going to push for a law that's obviously unconstitutional. And if it's possibly constitutional, how are you going to "prove" to them that it's not? By your own definition, no one can "prove" this since it's up to each person's interpretation. By the practical definition, it's constitutional if the Supreme Court says so, and the only way to prove one way or the other is to pass the law.

Posted by: Bruce on March 4, 2009 12:28 PM
45. To clarify my last sentence: the only way to prove one way or the other is to pass the law and let the Courts decide whether it's constitutional.

Posted by: Bruce on March 4, 2009 12:34 PM
46. Bruce:

No, he is not agreeing with you.

Yes, he is, he just doesn't realize it.

I'm not a lawyer, but I believe there is a legal principle that assumes, roughly, that laws are intended to mean something, and should be interpreted with that assumption in cases of ambiguity.

Fine. But there was no ambiguity. The law was very specific. That's the point. And she explicitly argued that the text of the law was not sufficient.

Of course not, because you are asking for something ridiculous.

Yes, you're right, because OF COURSE Democrats would not refuse to push for a law that was proven to them to be unconstitutional, because they hate the rule of law.

There are surely things Democrats haven't pushed for because they're unconstitutional -- e.g., a ban on saying mean things about Democrats.

No. They don't push for that because they WOULD NOT push for that, because they disagree with it, and would not WANT it to pass, even if it were constitutional. I am talking about things they WANT to have passed, obviously.


But few reasonably intelligent people (I know, that's a setup for you) are going to push for a law that's obviously unconstitutional.

Ummmmmm. So you're saying the majority of the Senate is not reasonably intelligent, or that they are few of the reasonably intelligent who would? Because it is obvious that the D.C. Voting Rights Act is unconstitutional.


And if it's possibly constitutional, how are you going to "prove" to them that it's not?

As I did above with the D.C. Voting Rights Act.


By your own definition, no one can "prove" this since it's up to each person's interpretation.

Incorrect. You're not making any sense here.


By the practical definition, it's constitutional if the Supreme Court says so

As I already demonstrated, this is incorrect. It is constitutional if the Constitution says so, regardless of what the Court says. It's not a matter of "practical," it's a matter of context.


... and the only way to prove one way or the other is to pass the law.

Incorrect. You can prove it by demonstrating it through argument, as I did with the DC Voting Rights Act.

Posted by: pudge on March 4, 2009 12:47 PM
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