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May 31, 2009

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The issue that maybe this post misses is the fact that Democrats always make these identical situations extremely divisive when the shoe is on the other foot. But when it's their turn they all too often expect "bipartisan" support. Perhaps they are merely receiving what they have sowed for a very long time. You may disagree but it is the truth.

mark

"Does a regulation that limits the amount individuals and corporations can spend in the political process violate the First Amendment? The passivist, originalist, strict constructionist view must be: No."

I don't agree and don't even see the basis for the statement, unless you are turning the dial on "passivist" and "strict" up so high as to create a reductio ad absurdum. For example, an originalist view would include observing the rough and tumble way in which elections were conducted and influenced in early American history and likely conclude that the framers did not intend any limits to be imposed.

I'm less skeptical of your approach to the 14th amendment but it's not so obvious as to be a "must be no" either.

Andy Bolen

Do you have any evidence for your claim that contemporary conservatives generally want affirmative action declared unconstitutional?

"Does a regulation that limits the amount individuals and corporations can spend in the political process violate the First Amendment? The passivist, originalist, strict constructionist view must be: No."

It seems like you're equating a lot of things here--passivist and originalist are not necessarily the same, right? Originalism or strict constructionism could lead one to be active only in certain respects? And one could, in good faith, believe that the original meaning of the First Amendment prohibits campaign speech regulations, while, say, the original meaning of ninth amendment doesn't prohibit waiting periods for abortion, right?

Conservatives should be more consistent, probably, but my impression is that generally when they say "activist" they mean "atextually activist"--someone who is willing to enshrine policy preferences at the expense of original meaning.

david

I am a little surprised that Professor Stone has not yet raised the issue of Judge Sotomayor's religion. She is Roman Catholic. Her addition to the Court would mean that six of the nine justices are Catholic (Souter is Episcopalian). Since Professor Stone has expressed concern with a Court comprised of five Catholics (http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased_.html), one would imagine he would have even greater consternation now.

Roach

It's a rigged game. For Sotomayor it's all about power and her groups: women, magical Latinas, etc. White males need not apply. But if I were to say, well, as a white male, I don't want to lose any power and that's reason alone to oppose her appointment, let's just say I'd probably lose my job. Further, my values as an American are against such crude triablism. For Sotomayor, not so much.

On a related note, Geoff Stone is a sophist impressed with knocking down straw men, using weasel worded phrases like "central meaning." How about the text?!? The original intent of the 14th Amendment never was to privilege minorities at the expense of the historic majority population of America. Only a suicidal liberal (or a person on the outside looking to topple traditional elites) would say something like that. Further, the text does not allow race distinctions, unless the text is totally tortured. This is classic liberal substitution of policy and the so-called spirit of the laws for the text. Since liberals and so-called legal realists are a kind of epistemological nihilist, everything they say should be looked at skeptically.

That said, on GM, I'd like to commend Justice Ginsburg for staying the crazy, lawless plans of Obama and Company. I would hope that a wise Jewish woman with the richness of her experiences would more often than not reach a better conclusion than a biracial male who hasn’t lived that life.

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