RoR: Forum

And here is another little video clip where she explains that some areas of the constitution are meant to be interpreted over time. The progressives "living constitution" argument. She should have been challenged on that by someone... Someone that could point out that is what the amendment process is for. She is going to be a disaster.

Post 1

Tuesday, June 29, 2010 - 5:49pm

There is a deeper issue being argued, very much to the point of the First Amendment, and that is the campaign law in question, FEC 441b. The question is whether corporations can contribute to campaigns. It is complicated, as, for instance, labor unions and many other collective entities endorse candidates and ballot initiatives and referenda. Is a corporation truly a person under the law?

Money is speech, as I show here. Literacy exists at all only because of accounting.

That said, Supreme Court justices serve for decades. New cases bring new challenges and new ideas. In the first clip offered, Justice Alito alludes to Netflix. (He mistakenly asks "What if they could be downloaded free from Netflix?" Wrong example of the right point.) GoogleBooks, YouTube, and the others did not exist a few years ago.

California v. Ciraolo, 476 U.S. 207 (1986) (Wikipedia here) is interesting because the police spotted the petitioner's backyard from the air. The Supreme Court ruled that privacy was not violated as the backyard was plainly visible from above. Justices for the Court: Warren E. Burger, Sandra Day O'Connor, William H. Rehnquist, John Paul Stevens, Byron R. White and Justices Dissenting: Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, Lewis F. Powell, Jr. The "conservatives" lined up behind the police and the liberals argued for civil liberties. All of that 70 years after airplanes were common.

The Constitution does need to be reinterpreted over time. Conservatives who deny that deny the consequences of change.

So, while several tests suggest that Elena Kagan (note correct spelling) may not be qualified to serve on the Supreme Court, her putative "progressivism" or "liberalism" does not apply. Times change. Justices face new questions. What matters is the principles they bring based on the characters they developed long before they came before the Senate. If promoted to the Bench, Elena Kagan might flounder no worse than other lackluster lawyers. At best, she might write interesting dissents.

Basically, a lot of conservatives are reflexively opposing a liberal, just as the Democrats made noises about Republican nominees. Clarence Thomas succeeded but Robert Bork did not. Hard to say that it matters in the long run because in the final analysis, the Court shapes the Justice.

Post 2

Wednesday, June 30, 2010 - 3:27pm

Michael,

The difference is in what is meant by "interpret" - look at these Wikipedia article: Originalism

There are two meanings to "living constitution" - one of them involves the built in mechanism of amendment. If changing times, or the lessons learned through history warrant a change in the language of the constitution, then it should be amended. We have done that again and again.

The other meaning involves disregard of constitutional language as the means of promoting change via judicial activism. This can be done by the right or by the left.

The purpose of the constitution is to stand as a roadblock to any government powers beyond those originally granted by the constitution or subsequent amendments. Because the individual was held to be sovereign, the states were delegated powers by the individual. The states became sovereign, not relative to the their citizens but in regard to all other states (I'm talking about England, France, etc.). Then the American states decided to join in a federation - and to delegate some limited powers to this federal organization. They were deeply concerned that the new organization would begin to think it was superior in the power structure and that the states would be answerable to it. And that in individuals would then lose liberties, so their intention was that the new organization not have any power it wasn't explicitly delegated via the constitution.

The constitution was to be used to tell the federal government, "Hey, you can't do that, because that is not a power you were granted."

From this perspective, you can see that government should not have any laws regarding the financing of campaigns. So the mention of corporations as individuals or not is immaterial.

Kagan's progressive politics do apply - they are critical! The progressive position is as follows:

A large and powerful government is a necessity - very nearly being a good in itself,
The chief impediment to achieving the desired growth in government is the constitution
The best way around the constitution as an impediment is to argue these points: 1.) The constitution is a living document that must be interpreted in light of new circumstances, 2.) It is out of date so we now just use case law and extrapolate from there, 3.) the principles and lofty ideals of the constitution are to be taken as goals the justices should be active towards in their interpretations, 4.) The idea that the constitution is not a strict limitation of powers, but rather just a list of the current powers.

Michael, you wrote, "What matters is the principles they bring..." If they bring progressive political principles then they will also be using the concept of the ends justify the means, including the use of subterfuge as a means. And their end will be to subvert the constitution. Obama has said that the constitution's declaration of negative rights has impeded progress towards positive rights (like health care), and that the constitution must be reinterpreted to permit greater redistributive justice.

The constitution is a structure. It is intended to force a specific methodology. That we will best preserve our liberty if it is strictly interpreted according to originalist principles. That the judicial be forced to accept those limitations and not 'legislate' from the bench. Then when time indicates change is needed that it come from amendments. People can destroy freedom or enhance it via amendments - that we all know (emancipation freed, abolition diminished freedom). It isn't perfect, but using the amendment process is a far better mechanism because of the checks and balances it preserves.

(Edited by Steve Wolfer on 6/30, 8:53pm)

Post 3

Thursday, July 1, 2010 - 5:43pm

Steve, you condemn "progressives" and we can allow that your unvalidated assertions are accurate if not precise. (Who speaks for "progressives"? Even if you could quote one or a hundred, it would not show that such assertions are required for membership. I say that I am an Objectivist. What if some "progressive" found my posts here and claimed that "Objectivists" believe whatever I write?) What you have, Steve, is the fallacy of the unnamed collective. Show me where Gallup or Pew or some other reputable tabulator found that some significant percentage of self-identified "progressives" agree with the statement "A large and powerful government is a good in itself." or "The Constitution is an impediment to desired growth in government." or the four subsidiary inventions you created.

The video clip offered is an example of irrelevant detail. Kagan was the Solicitor General. Arguing the government's case was her job. Not to do so to the absolute best of her ability would have been a moral failure on her part. In the Dissent Forum is a topic, about "John Yoo opposition group forming in the OC" from Phil Osbourne. In that, from about Post #41 forward, I defend John Yoo and Jay Bybee. (As White House counsels, they wrote memoranda on the legality of, or legal limits on, torture.) My point then, as my point now, is that your lawyer defends you. Elena Kagan defended the Federal Elections Commission, nothing more... and surely nothing less.

If you want to excoriate Elena Kagan on the basis of something she wrote for herself, an NYT op-ed or something, then fine.

So far, though, all you have presented is a knee-jerk reflex typical of a "conservative" who opposes "progresssives." You never really identified anything she wrote.

More to the point, as I said, the Court shapes justices because new issues demand new applications of basic principles.

Among those basic principles is what you deride as "bench-made law." Indeed it is. That is the Anglo-American system. The legislature broadly empowers the administration to do certain things. Should the executive branch agents contravene the constitution during enforcement, then citizens bring suit on appeal of their sentences. The other way to do things is "civil law" (not to be confused with what we call "torts".) Under civil law -- like the Code Napoleon -- the legislature specifies every detail in every law and the only purpose of the court is to decide if the facts fit the law. Interpretation is not their way. That is the Anglo-American mode, where the judge decides how the law is to be interpreted and applied to the facts in the case -- or (interestingly) how the facts in the case reveal the law.

Under our system, the courts can invalidate the law. That was Justice Alito's point in response to Counselor Kagan: the court does not take an overbroad law and trim it back to its constitutional limits; to be overbroad is to be unconstitutional by definition. If you do not like that then you need to say why.

(Edited by Michael E. Marotta on 7/01, 6:06pm)

Post 4

Thursday, July 1, 2010 - 7:53pm

steve,

I only came across references to "negative rights" and "positive rights" with regard to the Constitution about two months ago, and had opined elsewhere that their usage is pure trash... in essence an attempt to elevate the concept of "entitlements" to being a "right" so as to sow confusion (I recall referring to it as 'newspeak').

I can't help but believe they are dishonest terms, not appropriate descriptions, and refused to use the terms, insisting instead on "rights" versus "entitlements". They do seem to be of relatively recent usage. Would you think I being too picky?

jt

Post 5

Thursday, July 1, 2010 - 8:09pm

Michael,

My beliefs are based upon my reasoning from principles, not blindly adopting polls, or the beliefs of authority figures. You keep asking who grants membership, or for Gallop or Pew poll results. Needless to say, I have no intention of arguing from those twisted premises.
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If you disagree with my list of key progressive views regarding government, then give a reason, or give an alternative, or tell us what your definition or description of a progressive. (There is this wounded tone to your post that makes me think you are feeling hurt at my sharp remarks about progressives, or about Kagan - have I offended one of your sensibilities on this?) Do you even know what 'progressive' means? Or, the term's history? I'm thinking not.
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Regarding Kagan being required to argue the government's case when she was the solicitor general... No. Her first obligation was to stand by the oath she swore to defend the constitution - which includes NOT arguing against the first amendment! That was her first moral obligation. (If the government case was for slavery, would you say it was her first moral obligation to defend it to the best of her ability?)
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You told me to excoriate her on the basis of her own opinon (as opposed to where I attacked her when she was being her client's attorney) - What do you think I was doing where I gave a link to a video of her speaking before the confirmation committee in post #0?

In that clip, in her own words, while speaking to the confirmation committee - just days ago - she states that there are many clauses in the constitution that were MEANT by the founders to be interpreted over time. She should know that the founders specifically did NOT want the constitution to be interpreted over time, and that is why they built in the amendment mechanism. If she knows that, and decides to revise history, she doesn't deserve to be on the court, and if she doesn't know that she doesn't know enough to be on the court.
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You wrote, "So far, though, all you have presented is a knee-jerk reflex typical of a "conservative" who opposes "progresssives." You never really identified anything she wrote."

tsk, tsk, Michael - cheap attack and wrong on the facts: I'm not a conservative so putting that word in your sentence in hopes it will rub off on me just makes you look small and angry. My remarks are rarely 'knee-jerk' since I argue in principles, and I gave specifics - I linked to her speaking in her own words, and in another thread I spoke of specifics regarding her confirmation.
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You wrote, "Under our system, the courts can invalidate the law. That was Justice Alito's point in response to Counselor Kagan: the court does not take an overbroad law and trim it back to its constitutional limits; to be overbroad is to be unconstitutional by definition. If you do not like that then you need to say why."

I have always been a strong advocate of a government strictly limited by the constitution and have said that we are required to use a strict originalist approach to interpreting the constitution - not the 'living constitution' approach you advocate. I favor Justice Alito's decision (he is an originalist). You clearly chose not to read the article I gave you a link to or you would never have written a post that was so far of track.
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The stupid thing is arguing constitutionality with an anarchist!

Post 6

Friday, July 2, 2010 - 6:56am

SW: My beliefs are based upon my reasoning from principles, not blindly adopting polls, or the beliefs of authority figures. You keep asking who grants membership, or for Gallop or Pew poll results. Needless to say, I have no intention of arguing from those twisted premises.

You ascribe "progressive" views to Elena Kagan, and she does seem to hold them. However, I question that "progressives" believe what you claim any more than "Objectivists" agree with what I write. You constructed a strawman. Libertarians are racists. Objectivists would kill handicappers. Conservatives deny civil liberties. Right wingers are planning to kill police officers. A "progressive" could claim all of those and be no more right than you when you claimed that progressives find the Constitution to be an impediment to the growth of government or that progressives believe that a large and powerful government is a good in itself. Instead of facts, you offer a primacy of conscious statement about the political landscape.

SW: If you disagree with my list of key progressive views ....

And if you disagree that Objectivists want to kill police officers, please prove otherwise? No, that is not how it goes. You made a bald claim and I called you on it. Show your hand. Where are your facts?

SW: ... this wounded tone to your post ... I offended one of your sensibilities ...

My sentiments are not with Elena Kagan, but with rational explanations of empirical evidence. Liberals and conservatives, strict constructionists and broad interpreters, activists and originalists, they all come and go. The work they do on the Supreme Court develops over a lifetime. You dislike the Warren Court, but when he was appointed, Earl Warren was considered a moderate, easily, a conservative, perhaps, but widely popular for his integrity.

Warren vigorously investigated allegations that a deputy sheriff was taking bribes in connection with street-paving arrangements. He wasa tough-on-crime district attorney (1925�1939) who professionalized the DA's office. Warren cracked down on bootlegging and had a reputation for high-handedness, but none of his convictions were overturned on appeal. On the other hand the Warren Court later declared unconstitutional some of the standard techniques he and other DA's used in the 1920s, such as coerced confessions and wiretapping. WIkipedia on Earl Warren.

SW: Do you even know what 'progressive' means? Or, the term's history? I'm thinking not.
Sure, for one thing, according to Gabriel Kolko's Triumph of Conserrvatism progressives favor the use of government to serve business consolidation and control. Haliburton is a prime example, of course, the Bush Bailouts, that sort of thing. Progressives accept communist dictatorships as legitimate governments, as when President Nixon met with Mao Zedong. Progressives crank up the printing presses and run huge government deficits, like Ronald Reagan did. (Am I close on this?) "Progressive" is a label from the previous turn of the century. Like "liberal" or "conservative" or "populist" or "nationalist" whatever it meant then has little relevance today, unless someone claiming to be a progressive offers a definition for convenience.

Her first obligation ... was to stand by the oath she swore to defend the constitution - which includes NOT arguing against the first amendment! That was her first moral obligation. (If the government case was for slavery, would you say it was her first moral obligation to defend it to the best of her ability?)

Well, context matters. I mean, if Elena Kagan cannot take the job of solicitor general because governments inherently endanger personal freedoms and individual rights, then, really, we need to purge some phony "Objectivists" from RoR because they hold government jobs, enjoying stolen wealth and giving their sanction to their destroyers. So, there is that.

If you accept the fact that the office of Solicitor General has a function and purpose, then, yes, if the government's case were to promote slavery -- say, a military conscription and we do have registration even now -- then, yes, her obligation is to do the job for which she was hired, regardless of her personal views.

... she states that there are many clauses in the constitution that were MEANT by the founders to be interpreted over time. She should know that the founders specifically did NOT want the constitution to be interpreted over time ...

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
Federalist 78 http://www.foundingfathers.info/

If you deny the interpretation of the Constitution by the courts to meet the needs of the law as it is lived by individuals in society, then you endorse the European "civil law" view that the legislature makes the laws, the executive enforces the laws, and the judiciary finds fact (or not) to condemn lawbreakers (or not).

SW: I favor Justice Alito's decision (he is an originalist).

I grant that he is more conservative than Elena Kagan, and perhaps even moreso than Justice Ginsburg. However, Justice Alito's writings are not so easily catagorized. National Review, among others, separated him from the originalist views of Justice Scalia. You have a right to your own opiniion, but you do not have a right to your own facts.

SW: The stupid thing is arguing constitutionality with an anarchist!

And I can argue religious doctrine, even though I am an atheist, without ever questioning the existence of God. For instance, did you know that it is a principle of Catholic doctrine that the Revealed Word of God is known only from the original manuscripts in Hebrew, Aramaic and Greek, and that the translations of those Books are only a guide to them? So, when someone quotes KJV, they are not really citing the Revealed Word of God.

(Edited by Michael E. Marotta on 7/02, 7:08am)

Post 7

Friday, July 2, 2010 - 12:39pm

Jay,

You are absolutely dead-on correct and I don't think you are being too picky in the least.

Progressives (and most all statists) have chosen to use the tactic of debasing language to try to win their arguments. There are such things as "positive rights" but only when they are created out of voluntary agreements - as a product of contract and never as moral rights, or natural law. Positive rights can only exist as something I've become entitled to, or that I will provide for another, because of an arrangement we chose to enter. But the statist drops the context of choice and shifts the concept into moral law for the purpose of gaining moral high-ground (as if one could become more moral by theft).

There are video clips of Obama talking of the 'need' to get past the negative rights in the constitution so that we can attend to the people's 'positive rights' - which is what he did with Obama care. How could anyone ever make a argument against that which is "by right"? By counterfeiting a competing right.

The word 'entitlement' carries a claimed justification of what we know isn't justified - how typical of the left (and with the progressives on the right - like with the "Patriot Act"). As if they can change the facts of reality by naming things with the traits they want us to believe are there when the facts are exactly the opposite.

Here is an example of the brain numbingly ugly style of argument used by the far left: "What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference." [Sterba, via Wikipedia]

I don't use the terms 'negative rights' or 'positive rights' very often because I don't think they express an essential element of individual rights. When you say 'negative rights' you almost imply a valid existence for 'positive rights' otherwise why differentiate? Then you just end up explaining the difference between moral rights and legal rights and that there can be no such thing as the right to violate a right.

Post 8

Friday, July 2, 2010 - 2:02pm

Michael,

You wrote, "You [Steve] ascribe 'progressive' views to Elena Kagan, and she does seem to hold them. However, I question that 'progressives' believe what you claim any more than "Objectivists" agree with what I write."

Let me see if I can understand that.

I ascribe progressive views to Kagan.
You admit that she does seem to hold them.
But you believe progressives don't share the views I listed.

You go on to say that progressives don't find the constitution to be an impediment to the growth of government or that a large government is a good thing.

You claim that you do know what a progressive is, and you quote Kolko in saying that progressives favor the use of the government to serve business consolidation and control and gave Halibuton as an example, and you mention the Bush Bailouts. Yes, so far so good. You are choosing examples of progressives on the right, but nothing wrong with that as long as you are also able to see progressives on the left. To engage in what is referred to as crony capitalism, which the Bush administration did, and as the Obama administration is doing now, requires ignoring the constitution, and it means choosing Supreme Court Justices that will 'interpret' the constitution in ways that allow the 'progress' toward the particular form of a larger government (right or left) that is desired. The key to a progressive is that they want to move towards either Marxism or Fascim (or a mixture thereof, and to some degree) but they are willing to 'progress' in that direction, gradually, and not with a sudden coup or revolution. That was the plan laid down by Fabian Socialists, adopted by the progressives at the turn of the century (e.g. both Roosevelts and Wilson)

You said progressives crank up the printing presses like Reagan did. Well, I may be wrong, but I don't think Reagan did crank up the printing presses. He shut them down after Carter had them on full speed. He did deficit spend, but that was because he didn't cut spending (only the rate of spending increases) while sharply cutting taxes. Carter was clearly a progressive. Reagan wouldn't be seen as a progressive despite not being a libertarian. You are right that it is a term from the previous turn of the century and it was chosen by those who wanted to pursue the goals that Obama/Reid/Peolsi want to pursue today. It has enormous relevance for today unless someone thinks that ignorance possesses special value or that there is nothing to learn from history.

You talked about progressives being comfortable with communist regimes... and I agree. Nixon with his Metternick power plays. Obama who fawns over Chavez. FDR with Stalin. Those who are progressives want to have more power, and are tyrants at heart, but they believe that they must 'progress' gradually in the direction of increased state power. And what is the impediment to their progress? A strict originalist interpretation of the constituion. What do they hunger for? Power - and that means a big government. If someone wants to reduce government power and size, there is no way they could be said to be a progressive (not even if they are a liberal Democrat who thinks that Obama has gone to far - there are a few of those).

I have no ideas what facts you want. You seem to think that everything is just a strawman argument - you who claim to be an Objectivist AND an anarchist. You don't like the way I describe progressivism but refuse to say why. You are still writing as if the conservatives are the primary enemy. They were during the Bush administration, but now they are the secondary enemy and only to the extent that they are not fiscal conservatives, or are social conservatives or neo-cons. But you seem to have missed that sea change. All that I can think of is that it may be because of the warm and fuzzy relationship that progressives, communists and anarchists have had in the past.
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Michael, you are equivocating on the word 'interpretation' - Yes, it is the job of the court to interpet the constitution, but as I have said, what is required to protect our freedom, and what was meant by the founding fathers was for that interpretation to be done in the fashion of using the words strictly as used by them. You know that there is a giant difference between a strict origionalist's interpretation and the interpretation used by a far left or a far right justice to grant powers to the government that were never intended by the founders and which could not be acquired without ignoring what the words mean. That is what I was saying, which you know, which makes your arguments dishonest.

You were correct that alito is not consistently an originalist and I should have said that his decision was originalist, rather than to say the he was originalist... and yes, Scalia is much more consistently originalist.

Post 9

Friday, July 2, 2010 - 3:48pm

Kagan is a cookie-cutter of Sotomayer, also a radical Princeton U. feminist/activist. Jesus, you'd think Obama had married one. He's in a rut. He can't bottom feed once in a while at UCal/Berkley for his closet commies?

One instructed Princeton U. inbred Ivy leager per any 12 month period should be an unwritten rule.

Kagan doesn't provide 'balance' ... to Sotomayer. No surprises in the way Sotamayer voted this past year, and there will be no surprises in the way Kagan votes, either, no matter how humorous her schtick is these days.

Sotomayer provides balance to Alito(who somehow escaped from Princeton U. unscathed by all the radical left wing indoctrination...)

If you took away 'Harvard, Yale, Princeton, and Stanford' from the USSC...who would be left?

We are some diverse nation, all right. That is some inbred little fraternity? sororiety? .... club they got going.

Ideas can suffer from too much inbreeding. We are going to the same wells too often, which is a real problem, if those open wells were once deliberately targeted and poisoned by our global adversaries.

Which they were. McCarthy was right.

Post 10

Friday, July 2, 2010 - 6:02pm

Steve, thank you for aiming closer to the mark. We are on the same page, at least, although you do accuse me of being dishonest. Disingenuous, perhaps, but I am not dishonest. I object(ed) to your conservative rant declaming against a "progressive."

Did you expect President Obama to find his candidate at the Cato institute?

The only question that matters is: "Is Elena Kagan qualified to serve on the Supreme Court." If she just graduated from high school -- with no extra curricular activities and no term papers for us to abhor -- and became Dean of Harvard Law School, then, yes, she would be qualified on that basis alone.

Many of the people who served on the Supreme Court never went to law school. Many of the people serving now do not have juris doctorates, but LLBs, bachelor's of law.

How do you determine if someone is qualified to serve on the Supreme Court? Some self-styled feminists insist that your opinion on Rowe v. Wade is a litmus test. I deny that. I think of the next 30 years and I know for a fact that there is at least one "black swan" in there for the Supreme Court, the equivalent in the next generation of Marbury, Dredd Scott, Plessey, Brown, Miranda or Rowe. You cannot predict.

We can try. My favorite is the recognition of software as an agency of self. WIth electronic filing of corporation papers, it is only a matter of time before a computer program incorporates herself. (See the scifi novel Valentina: Soul in Sapphire by Delaney and Stiegler, for instance. Wintermute in Gibson's Neuromancer, or Mycroftxxx in The Moon is a Harsh Mistress, it seems inevitable.) Can you predict how a "conservative" like Scalia or a "liberal" like Sotomayor will decide? I cannot. I can only say that majority or dissent or majority dissent, the opinions from that case will rock the foundations of law for a century to come.

(Edited by Michael E. Marotta on 7/02, 6:05pm)

Post 11

Friday, July 2, 2010 - 6:23pm

Michael,

I don't do conservative rants - I do Objectivist rants :-)
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You wrote, "Did you expect President Obama to find his candidate at the Cato institute?"

Foolish question. I'm talking about who should be on the Supreme Court, how the constitution should be understood and used, and what the Senate should do to honor their confirmation requirements.
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You asked if Kagan is qualified to serve on the court. No, she isn't. This isn't about left or right. This isn't about Republican or Democratic. This is about serving a unique function in protecting our freedom. Only by strict, non-partisan originalist interpretation of the constitution will it act as a barrier to arbitrary growth of government. The social conservatives should not be allowed to have litmus tests of abortion or gay rights and the left should not be allowed to promote their champions of diversity and social justice. The senate should be joined, left, right and center in weeding out anyone that isn't bright, knowledgeable, and a strict originalist. End of story on that.

Can you see that this has little to do with her experience or background or education, and everything do with a proven record of understanding how the constitution should be understood and used?

Post 12

Friday, July 2, 2010 - 8:44pm

Fred:

Ideas can suffer from too much inbreeding

LOL, that's a great way to put it! It's basically an echo chamber.

Post 13

Saturday, July 3, 2010 - 2:54pm

... should the Court accept pornography or hate speech as a low-value category of expression? The currently recognized categories of lowvalue speech seem to share the trait, as Cass Sunstein writes, that they are neither "intended [nor] received as a contribution to social deliberation about some issue." [81] That definition offers several lessons for any regulation, concededly based on viewpoint, either of hate speech or of pornography. In the case of hate speech, such an ordinance should be limited to racist epithets and other harassment: speech that may not count as "speech" because it does not contribute to deliberation and discussion. In the case of pornography, any ordinance should be limited to materials that operate primarily (as obscene materials operate primarily) as masturbatory devices; in addition, an explicit exception, like that in the obscenity standard, for works of serious value ought to be incorporated.

Only if pornography and hate speech are defined in this narrow manner might (or should) the Court accept them as low-value categories- a classification that, it must be remembered, depends at least as much on the non-expressive quality of the speech as on the degree of harm the speech causes.

In addition to all this, perhaps one other factor-the modesty, or limited nature, of the viewpoint restriction-should be considered prior to recognizing a low-value category of speech incorporating viewpoint bias. This inquiry would focus on whether the regulation of the category wholly excises the viewpoint from the realm of public discourse or cuts off only a limited means of expressing the viewpoint.[82] Even the MacKinnon-Dworkin version of anti-pornography legislation would do only the latter: it would prohibit not all messages of sexual subordination, but only those messages expressed in a sexually graphic manner. This feature seems critical to the establishment of any exception to the viewpoint neutrality principle. The broader the restriction, the more it will skew public discourse toward some views and away from others. And the larger the skewing effect, the greater the chances of improper governmental motivation; a wholesale, more than a marginal, restraint suggests a government acting not for neutral reasons, but out of simple hostility to the idea restricted. Of course, the inquiry into the scope of a viewpoint restriction does not lend itself to scientific precision. The matter is always one of degree, involving the drawing of a line someplace on a spectrum. The inquiry, too, is complicated by the issue whether the particular means restricted (even if technically modest) constitute the most effective way of delivering the message, such that the restriction ought to be treated as sweeping. But the haziness of the endeavor does not gainsay the need to engage in it. For a viewpoint restriction that results in excising ideas from public discourse ordinarily ought not to be countenanced-even when the restriction applies only to lowvalue speech and even when the restriction closely responds to serious harms.

"Regulation of Hate Speech and Pornography after R.A.V.," Elena Kagan, The University of Chicago Law Review, Vol. 60, No. 3/4 (Summer - Autumn, 1993), pp. 873-902.

Post 14

Saturday, July 3, 2010 - 3:00pm

This Article shifts the focus from consequences to sources; I argue, notwithstanding the Court's protestations in O'Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doc-trine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point anoth-er way, the application of First Amendment law is best under-stood and most readily explained as a kind of motive-hunting.
[...]
Courts, of course, rarely construct law in so deliberate a fashion; at least, the current Supreme Court-fractured, clerk-driven, and uninterested in theoretical issues as it is-rarely does so. The self-conscious rationalization and unification of bod-ies of law is not something to expect from the modern judiciary. So I do not mean to stake a claim that individual Justices, much less the Court as a whole, have set out intentionally to create a doctrinal structure that detects illicit motive by indirect means. The story I tell about purpose in the law does not depend on any assertion about the purpose of the Court. What I provide is sim-ply a reading-I think the best reading-of the Court's First Amendment cases. I contend not that the Court self-consciously constructed First Amendment doctrine to ferret out improper motive, but that for whatever uncertain, complex, and unknow-able reasons, the doctrine reads as if it had been so constructed.
[...]
But this account has left open a crucial issue: why is it im-proper for the government, through restrictions on speech, to show contempt for contemptible ideas, independent of the harm they cause? One answer to this question negates its premise: this answer insists that in life, as in law, "there is no such thing as a false idea," neither an abhorrent one;270o r, to put the point somewhat less baldly (in the way Justice Holmes flirted with it), the very, and only, definition of truth and wisdom is what emerg-es from free discussion.271B ut this answer entails an extreme skepticism, unacceptable to most of us because incompatible with a host of our considered judgments. It explains the First Amend-ment principle of equality only by assuming a world of moral indeterminacy (thankfully) impossible to recognize. A second and better answer to the question refers to the probability that the government will err, as a result of self-interest or bias, in sepa-rating the true and noble ideas from the false, abhorrent ones; a scheme of neutrality thus provides the surer means to make this distinction. But this answer largely returns us to the consequentialist basis for focusing on motive; again, what is stressed is the connection between distrusting government and achieving the best possible public discussion. What I am trying now to explore is a different rationale for the focus on motive.

[...]
Were the government to limit speech based on its sense of which ideas have merit, it would expropriate an authority not intended for it and negate a critical aspect of self-government. [277] Democracy demands that sovereign citizens, through each generation, retain authority to evaluate competing visions and their adherents-to decide which ideas and officials merit approval. Hence democracy bars the
government from restricting speech (as it also bars the govern-ment from limiting the franchise) on the ground that such activi-ty will challenge reigning beliefs or incumbent officials. The gov-ernment must treat all ideas as contingent, because subject to never-ending popular scrutiny. On this view, the prohibition of certain motives again serves as a way to delineate the proper sphere of authority, hereby preventing a democratic state from contravening key principles of self-government and thereby un-dermining its foundation.[278]

"Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Elena Kagan, The University of Chicago Law Review, Vol. 63, No. 2 (Spring, 1996), pp. 413-517.

(Edited by Michael E. Marotta on 7/03, 3:05pm)

Post 15

Saturday, July 3, 2010 - 3:22pm

Justice Scalia's and Justice Stevens's opinions in R.A. V. included a debate on just these issues. Justice Stevens first characterized the St. Paul ordinance not as viewpoint-based, not even as subject matter-based, but as injury-based: the ordinance banned speech that caused a special and profound harm. Justice Scalia mocked this approach, dismissing it as "word-play": "What makes the [injury] produced by violation of this ordinance distinct from the [injury] produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message."[116] Replied Justice Stevens: the Court failed to compre-hend "the place of race in our social and political order"; were it to do so, it would recognize that race-based fighting words were a grave social evil, causing "qualitatively different" harms from other fighting words.[117] St. Paul, on this view, had done nothing more than respond, neutrally and legitimately, to real-life concerns; and any resulting skewing effect, given these concerns, need hardly trouble us. To put the position most starkly (more starkly than Justice Stevens did): Even if, in some technical sense, the statute involved viewpoint, it was viewpoint we could cease to recognize as such for purposes of constitutional analysis.

"The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion," Elena Kagan, The Supreme Court Review, Vol. 1992 (1992), pp. 29-77.

Post 16

Saturday, July 3, 2010 - 3:27pm

[The Confirmation Mess. Stephen L. Carter. Basic Books, 1994. Pp xiii, 252.]

Elena Kagan*
*Assistant Professor of Law, University of Chicago. I served as Special Counsel to the United States Senate Committee on the Judiciary in connection with the nomination of Justice Ruth Bader Ginsburg to the Supreme Court. The views expressed in this Review are, of course, mine alone. I thank Al Alschuler, David Currie, Richard Epstein, Tracy Meares, Cass Sunstein, and Mark Tushnet for helpful comments. The Class of 1964 Fund and the Russell J. Parsons Faculty Research Fund provided financial support.

What confirmation mess?

Stephen Carter's new book decries the state of the confirma-tion process, especially for Supreme Court nominees. "The confirmation mess," in Carter's (noninterrogatory) phrase, consists of both the brutalization and the politicization of the process by which the nation selects its highest judges. That process, Carter insists, is replete with meanness, dishonesty, and distortion. More, and worse, it demands of nominees that they reveal their views on important legal issues, thus threatening to limit the Court "to people who have adequately demonstrated their closed-mindedness" (p xi). A misguided focus on the results of controversial cases and on the probable voting patterns of would-be Justices, Carter argues, produces a noxious and destructive process. Carter's paradigm case, almost needless to say, is the failed nomination of Robert Bork.

But to observers of more recent nominations to the Supreme Court, Carter's description must seem antiquated. President Clinton's nominees, then-Judges Ruth Bader Ginsburg and Stephen Breyer, confronted no unfair or nasty opposition; to the contrary, their confirmation hearings became official lovefests. More important, both nominees felt free to decline to disclose their views on controversial issues and cases. They stonewalled the Judiciary Committee to great effect, as senators greeted their "nonanswer" answers with equanimity and resigned good humor. And even before the confirmation process became quite so cozy (which is to say, even before the turn toward nominating well-known and well-respected moderates), the practice to which Car-ter most objects-the discussion of a nominee's views on legal issues-had almost completely lapsed. Justices Kennedy, Souter, and Thomas, no less than Justices Ginsburg and Breyer, rebuffed all attempts to explore their opinions of important principles and cases. Professor Carter, it seems, wrote his book too late. Where, today, is the confirmation mess he laments?

The recent hearings on Supreme Court nominees, though, suggest another question: might we now have a distinct and more troubling confirmation mess? If recent hearings lacked ac-rimony, they also lacked seriousness and substance. The problem was the opposite of what Carter describes: not that the Senate focused too much on a nominee's legal views, but that it did so far too little. Otherwise put, the current "confirmation mess" derives not from the role the Senate assumed in evaluating Judge Bork, but from the Senate's subsequent abandonment of that role and function. When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate be-comes incapable of either properly evaluating nominees or appro-priately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures. Out, then, with the new mess and in with the old! [1]
[1] And no, I haven't changed my mind since, several months after I drafted this Review, the Senate turned Republican and Orrin Hatch assumed the chairmanship of the Judiciary Committee. The conclusion of this Review still holds-even if I am no longer quite so sanguine about it.
"Review: Confirmation Messes, Old and New,"Elena Kagan, The University of Chicago Law Review, Vol. 62, No. 2 (Spring, 1995), pp. 919-942.

(Edited by Michael E. Marotta on 7/03, 3:30pm)

Post 17

Sunday, July 4, 2010 - 1:01pm

The only question that matters is: "Is Elena Kagan qualified to serve on the Supreme Court." If she just graduated from high school -- with no extra curricular activities and no term papers for us to abhor -- and became Dean of Harvard Law School, then, yes, she would be qualified on that basis alone.

What Steve said in post #11. My formulation of a highly qualified nominee:

1) a nominee who will candidly and completely answer every single question asked of them without evasion, allowing a full exploration of their judicial philosophy.

2) giving answers that indicate they will follow the original intent of the Constitution as written, and vote to overturn any precedent not adhering to that standard

3) enough judicial appellate court experience to have had some real-world experience in resolving thorny issues and generating a paper trail showing that their testimony about what they would do if confirmed matches their acts so far.

There isn't a chance in hell of getting such a nominee out of Obama, or any other president likely to get elected in the foreseeable future, much less of the clowns in the Senate confirming such a nominee, but that's my criteria for highly qualified.

Post 18

Sunday, July 4, 2010 - 6:04pm

Jim,

I sanctioned your post for those 3 nominee confirmation guidelines... they are well thought out.

Post 19

Sunday, July 4, 2010 - 6:34pm