U.S. Supreme Court: Post-Nino Edition

Incorporation of the Bill of Rights by way of the Fourteenth Amendement has been a phenomenon since the 1920s.

yeah that’s all i studied in government class in high school. thank god for the 14th

What good are rights if they don't protect against all levels of government?

the central question of the whole america thing imo

This is why I've taken to calling conservatives neo-Confederates. Consider:

1. Minority rule.
2. "States rights"
3. A return to constitutional norms before 1860, i.e. before the passage of the Civil War and Reconstruction amendments.
4. The inferiority of certain classes of people.
5. The imposition of federal taxes as an infringement on liberty.

Are there any texts/rulings that especially explain the conservative neo-conferate position?

it's almost as if.... there's an unbroken history there

Corey Robin's done some good work. Ari Berman wrote an excellent study of the long term conservative project to limit the franchise.

I was more thinking of primary sources, like actual conservative rulings. But I've found 'Reactionary Minds' and will check it out.

I thought this was a good summary of the cases coming to the court this term: https://www.nytimes.com/2018/09/30/us/politics/supreme-court-new-term.html But can anyone help me, how can it even be a question whether or not the Bill of Right applies to the states? What good are rights if they don't protect against all levels of government? Anyone have a good article or book on this issue?

― Frederik B, Monday, 8 October 2018 09:38 (three hours ago) Permalink

Start here:

https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

Also I think to understand it you have to understand that our Constitution was formed out of tension between people who conceived of a union of states with a strong federal government vs a kind of loosely united federation of independent states. That tension is present in the Constitution and has animated a lot of the political discourse in this country since.

I would not recommend enduring Chief Justice Morrison Waite's prose in Cruikshank, but here's a relevant excerpt (c/o Wiki):

There is in our political system a government of each of the several States, and a Government of the United States. Each is distinct from the others, and has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of those governments will be different from those he has under the other.

This is to our ears a bizarre conclusion, and even more bizarre given that fifteen years earlier we'd fought a civil war to dismiss the notion that citizens pledge allegiances to their states.

Fundamentally that means that US citizens has no constitutionally given rights, no? State constitutions can change quite easily.

(had, not has. I get that it's been overturned, more or less)

If you want a real mindfuck, look at the way the first amendment is drafted vs the other nine in the Bill of Rights. "Congress shall make no law..." I mean read literally, that's pretty explicitly only about the federal government. Yet if you consider that the rights enumerated in the first amendment are among the most important reasons the colonies supposedly revolted against King George, it would make no sense whatsoever to imply "but your state govt can restrict your freedom of speech, religion, assembly, etc., just not congress." Yet they specifically put that clause in the first amendment and NOT in the other 9 amendments in the bill of rights. I can't even make sense of that really -- I don't know if there's some explanation in the historical record, but to me it just looks like sloppy drafting/constitution by committee.

*tbf the 7th amendment does mention courts of the United States specifically, so that amendment arguably could be read to have a different result in the states.

are you impugning Madison and James Wilson

this is getting shared a lot right now but for good reason

https://progressive.org/op-eds/howard-zinn-despair-supreme-court/

which contains this nice bit of constitutional headfuckery:

If the Constitution is the holy test, then a justice should abide by its provision in Article VI that not only the Constitution itself but "all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land."

If u think about it aren't the borders between states just imaginary lines

I kinda forgot about the Roberts furor. I remember him being lampooned in a Broadway show in 05

Cant wait til 2024, when electoral votes allocated to corporations are considered Constitutional and Amazon decides the election

life begins at the moment of incorporation, when god gives each corporation a soul.

I might have to unbookmark this thread/America

lol Neil Gorsuch is already to Kav's left:

A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.

…

“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.

“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.

Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”

Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”

Sandra O has news.

After reading those excerpts from her highly articulate letter announcing the news, I find myself wondering if she is currently capable of reading that letter aloud. Not that it matters, really. Bon voyage, Sandra.

Reminds me of the apparently true story that when Reagan was at last persuaded to write the letter announcing his own dementia he sighed, asked for paper and pen, wrote it right then without revision, and within a week had finally let go of the remains of his sanity.

Ugh.

RBG

(fell and broke three ribs)

judge jeanine pirro, your limo is here

cool that the fate of our country is in the hands of an 82-year old hospitalized woman

beginning to think the idea behind the Supreme Court is really dumb

Otm

she's 85 btw

the idea behind the Supreme Court is dumb because it might be people we politically oppose running it for the foreseeable future?

it was the Supreme Court that desegregated schools....

Counterpoint: it was the Supreme Court that OK'd school segregation in the first place.

the fact that it's Yet Another System for a dishonest party to game to their political benefit is what's dumb about it

Gaming for life.

rbg should've retired a long time ago

this shit of people staying in offices into their 70s & 80s, i am not really a fan

otm

net harm done by Supreme Court over its history + likely future harm dramatically outweighs net good

All you have to do is google "Melvin Fuller Court"

Also, the Supreme Court's "desegregation" of schools is not really effective unless you have state and local support

*Melville, sorry

brown v board was obv a v important symbol but it didnt do shit without federal enforcement. it was basically ignored for a good decade.

too bad framers forgot to include SC tactical enforcement unit

(btw Ike was sending in National Guard to enforce in Little Rock 3 years after the decision so it wasn't exactly just treated as a suggestion)

im familiar with the little rock 9 which was at that point an exceptional case and not the norm (hence the qualifier "basically").

Gorsuch fans are going to enjoy today’s SCOTUS arguments over civil asset forfeiture. When the Indiana Solicitor General said the Excessive Fines Clause doesn’t apply to the states, Gorsuch looked incredulous and said: “Come on, General. Really?!”

— Mark Joseph Stern (@mjs_DC) November 28, 2018

…General?

i'm assuming it's general counsel but idk