Patterico's Pontifications

6/29/2015

More on the Supreme Court’s Twisting of Language, GMTA Edition

Filed under: General — Patterico @ 8:40 pm

Kevin Gutzman on Facebook:

Today, Justice Anthony Kennedy joined the Supreme Court’s four avowed Progressives in saying that when the Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” the word “Legislature” can be understood as referring to some body other than the state legislature.

I’m here to tell you not to defer to lawyers when it comes to the Constitution. There is nothing special in three years of education about torts, legal ethics, criminal law, etc., that would enable you to conclude that “Legislature” does not mean “Legislature.” What the five-judge majority in this case did was decide that it preferred not to enforce the Constitution in this case. Take it from a graduate of a ritzy law school: that’s all that happened.

The “ritzy law school” to which he refers? The University of Texas at Austin.

I think another graduate of that same institution had a similar complaint just this morning.

36 Responses to “More on the Supreme Court’s Twisting of Language, GMTA Edition”

  1. There is, I believe, no longer any particular reason to respect the decisions of this Court.

    It’s all about power. They have the guns and can make us do what they say. It’s really just that simple.

    Patterico (3cc0c1)

  2. I’m not a lawyer, but amen!

    We are nearing the bottom of that slippery slope. It’s going to get messy.

    Patricia (5fc097)

  3. In this case, I feel I do understand. The Arizona Constitution calls the People’s power of initiative and referendum the equal of the Legislature, and very explicitly denies the Legislature any power to challenge or change decisions so made. (The Legislature is really inferior to the Initiative and Referendum power.) I really don’t understand how the Legislature managed to find standing to even sue.

    htom (4ca1fa)

  4. except this referendum is against the purpose of the legislature, and we know how that turns out, just look where the amici briefs landed in this case,

    narciso (ee1f88)

  5. It would have been better to deny cert or dismiss it as improvidently granted.

    nk (dbc370)

  6. If the state constitution lets the people legislate by referendum, then how are they not a legislature? What makes the elected part-time legislators more of a legislature than them?

    Suppose the people decided to do without an elected legislature altogether, and do all their legislating by referendum (and suppose the president decided not to invoke the Republican Guarantee clause and send the troops in), would they not be the legislature for all consitutional purposes, and would it not fall to them to regulate elections, ratify amendments, etc.?

    Milhouse (a04cc3)

  7. I think I know where UT Law went so wrong. It requires students take a course in Constitutional Law, while Con Law is an elective at schools like Harvard Law School — which has provided more Supreme Court Justices than any other law school.

    DRJ (1dff03)

  8. It’s interesting to read how Lyle Denniston of Scotusblog profiled this case following oral argument. The decision turned out very different from the impression he formed after listening to the argument.

    DRJ (1dff03)

  9. The Roberts Court seems very chaotic.

    DRJ (1dff03)

  10. The Roberts Court is not chaotic. The Roberts Court consists of four liberals, two conservatives and the other guys just messing around. Wait, maybe they are chaotic.

    Ag80 (eb6ffa)

  11. the supreme court said patterico you can’t tell others who they can marry.

    equallity (2af81c)

  12. I have to agree with Milhouse and htom. The entire point of the Initiative is that the People retain the final legislative power, which they delegate to the sitting Legislature most of the time. When they don’t, they are acting as the Legislature.

    Now, this of course would seem to kick the legs out from under the previous decision regarding standing in enforcing an Initiative (in the Prop 8 case), but I guess you can’t have everything consistent.

    Kevin M (25bbee)

  13. the supreme court said patterico you can’t tell others who they can marry.

    Not only is that a non sequitur, but it’s a moronic non sequitur.

    Kevin M (25bbee)

  14. Ag80, which of Scalia, Thomas and Alito have you drummed out of the conservative fold?

    Kevin M (25bbee)

  15. 1-patterico
    With the way things are going – To do it over again, Would you go to law school?

    mg (31009b)

  16. I won a fair share of bets listening to this guy back in the 80’s.
    I like his candid thoughts.
    http://townhall.com/columnists/wayneallynroot/2015/06/30/are-key-republican-leaders-in-dc-being-blackmailed-n2018837/page/2

    mg (31009b)

  17. Q: how many berobed whores does it take to desecrate the constitution of a cowardly whorestate?

    happyfeet (a037ad)

  18. A: 5! That is all you need!

    happyfeet (a037ad)

  19. Mao said first you get the lawyers….

    But yes, any reasoned man with the capacity to read understands the Court (and Lawyers) have spent the last 100 years torturing words to get whatever they want from the law.

    How do you explain a whore in NY shaking down he ex-lover for $18MM b/c he (gasp) wanted to control her behavior given he was funding her lifestyle. Imagine, he did not want her having sex with other guys in his apartment that he was letting her stay in while also having sex in the same apartment with him.

    But when lawyers get involved, simple concepts are lost in a slew of dog shit. Ethics are lost. Morality ignored. Self interest trumps all.

    Sorry but, fuck the lawyers. The sooner the profession is “self identified” as nothing more than whores and devalued in terms of importance, the sooner we improve as a society. Sorry tot he many Lawyers but you have ruined a noble profession and should be held accountable for that.

    Enuff of the uber alles BS from Grad School dicks (me being one of them).

    Rodney King's Spirit (b31520)

  20. California fixed that by allowing Willie Brown to fool the people into a redistricting plan that let the Democrats run it. None of those “impartial” judges for us !

    Mike K (90dfdc)

  21. Setting district boundaries is not mentioned in that clause of the Constitution Which means by the plain meaning of the text, setting district boundaries is not a power of the Legislature. You can of course say setting district boundaries is implied, but in doing so you admit it is not part of the plain meaning.

    So you are complaining that the Court followed the plain meaning of the Constitution! Make up your mind!

    kishnevi (294553)

  22. Setting district boundaries is not mentioned in that clause of the Constitution Which means by the plain meaning of the text, setting district boundaries is not a power of the Legislature.

    Yes, it is. “Times, places, and manner“. Whether voting shall be by districts, and if so by what districts, is clearly included in “manner”.

    Milhouse (a04cc3)

  23. Can a state have more than one legislature?

    Michael Ejercito (d9a893)

  24. Can a state have more than one legislature?

    Why not? The federal constitution anticipates that states will only have one, but if the people of a state decide to establish two or more rival legislatures, who is to tell them they can’t do that? And that is what AZ seems to have done.

    Milhouse (a04cc3)

  25. It takes a lawyer to say “Legislature” does not mean legislature, because we lawyers tend to think highly of our own intelligence, and many of us seem to think that arriving at an obvious conclusion shows a lack of intelligence. It’s the mark of a superior intellect, this type of thinking says, to create a rationale that defies plain English and common sense.

    Bud Norton (29550d)

  26. Can the federal government have 2 legislatures? Scalia addressed the issue in his opioion:

    This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

    ropelight (1ea9d8)

  27. It takes a lawyer to say “Legislature” does not mean legislature,

    But under the AZ constitution, the people are a legislature.

    Milhouse (a04cc3)

  28. What does ‘the legislature’ mean?

    Arizona’s constitution says this:

    > The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.

    Would your view of the outcome of the case be different if instead the Arizona constitution said this:

    > The legislative authority of the state shall be vested in the people of the state. The people delegate a portion of their legislative power to an elected body, consisting of a senate and a house of representatives, but the legislative authority remains with the people, who may at any time propose laws and amendments to the constitution and enact or reject such laws and amendments at the polls, independently of the decisions of their delegates; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the delegates.

    My basic view of the case is that Arizona (like California) has effectively distributed the legislative power to a multipart system involving an elected body and the people, working in tandem. Unless the court finds that system so repugnant to the principles of Republican Government that it fails the Guaranty clause, it should accept Arizona’s allocation of the legislative power and hold that the *entire system* of legislative power is ‘the legislature’ for the purposes of the federal government.

    aphrael (69b4f7)

  29. “…Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. ”

    This is what the voters in Arizona and California did, after decades of gerrymanders by Republicans and Democrats, respectively. And the old regime sued for their power back. Why do you support them so?

    Kevin M (25bbee)

  30. Whether voting shall be by districts, and if so by what districts, is clearly included in “manner”.

    Says who? I read it as choosing between colored stones or paper ballots or some electronic dohickey. Clearly it does not extend to placing additional requirements on federal candidates (verboten).

    Even if it extends to deciding to HAVE districts (also probably preempted) it does not extend to drawing them. If it did extend that far, then the Congress would have the power to draw them under its election regulation power. Do you argue that?

    Kevin M (25bbee)

  31. How is the question of whether to vote by district, and if so which districts, not included in “the manner of holding elections for senators and representatives”? What else is it? And yes, of course Congress has the power to “make or alter such regulations”; why would it not?

    Milhouse (a04cc3)

  32. Now I get it. Okay, this really puzzles me. The rule is “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” so why did they choose to change the meaning of “Legislature” instead of sticking to the text which a group here (of which i am one) understood to not include the drawing of the districts?

    and did Kagen explain how the ‘fish taking’ case should be taken super literally and everything else not?

    seeRpea (0cf003)

  33. What is the difference between deciding that one representative will be chosen by the voters in each of the following districts, and deciding that they will be chosen on ballots printed on green paper?

    Milhouse (a04cc3)

  34. Please explain what sort of thing the drawing of electoral districts is, if it is not a regulation of the manner in which elections are conducted.

    Milhouse (a04cc3)

  35. seeRpea – it’s clearly established law that the drawing of districts falls into “the time, places, and manner of holding elections”. Currently there is a law, passed by Congress, which requires single member districts apportioned across the state (and thereby California, for example, from electing all of its Congresspeople at large or via large multimember districts), and nobody seriously challenges the constitutionality of that – because whether or not to have districts, and how to draw those districts, is part of the ‘manner of holding elections’.

    aphrael (69b4f7)

  36. re #34: thanks aphrael.

    seeRpea (0cf003)


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