Patterico's Pontifications

6/29/2015

“Plain Meaning” Takes Another Supreme Blow

Filed under: General — Patterico @ 7:43 am

The Elections Clause of the U.S. Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.

Today the Supreme Court, in a decision by the leftist voting bloc plus Anthony Kennedy, held that “the Legislature” doesn’t just mean, you know, the legislature. It can also mean “the People of the state through a ballot initiative.”

In a special irony, Chief Justice Roberts complained in dissent that the majority was ignoring the “plain meaning” of the Constitution.

62 Responses to ““Plain Meaning” Takes Another Supreme Blow”

  1. Ding.

    Patterico (3cc0c1)

  2. Shorter Roberts: Welcome to the party pal!

    Hadoop (657247)

  3. I’m pretty sure that the Founders intended that where the Article III says “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain”, it really meant “The judicial Power of the United States, shall be vested in Congress, and in such inferior Courts as the Congress may from time to time ordain”. What do you guys think?

    nk (dbc370)

  4. huh? this was a case about drawing election districts, no?

    btw: EPA lost today.

    and somehow the striking down of ‘vague’ minimum sentencing on Friday did not get mentioned here.

    seeRpea (0cf003)

  5. i think i picked the wrong week to stop sniffing glue…

    redc1c4 (4db2c8)

  6. #4: Fryday was kinda busy…

    redc1c4 (4db2c8)

  7. Scalia and Thomas alsxo ruled against the legislature on Article III standing grounds.

    Michael Ejercito (d9a893)

  8. “It has been said that the life of the law is experience.” Nice way to quote J. Holmes without attribution, Scalia.

    nk (dbc370)

  9. Until Congress awakens from gluttonous slumber there’s little that can be done to rein in either a faithless executive or an overly interpretive justice. There may be no political appetite in Congress to use its tools of political persuasion but neither the executive nor the courts will stop superceding matters properly left to the people and the states until they do.

    crazy (cde091)

  10. seeRpea #4,

    Patterico mentioned a couple of times last week — either in the comments or maybe an Update — that he was busy at work and didn’t have much time to blog. Most of the posts last week were written by Dana and other guest-bloggers.

    In addition, bloggers get to write about what they want. If you think the minimum sentencing laws are worth blogging about this week, get a blog and start blogging.

    DRJ (1dff03)

  11. You know, this is the same wording that prevents secession of a portion of a state by initiative…
    I don’t *like* the fact that they’re ignoring plain meaning, but if they’re going to interpret it wrong, we might as well use it against them.

    Ibidem (d15356)

  12. In a special irony, Chief Justice Roberts complained in dissent that the majority was ignoring the “plain meaning” of the Constitution.

    Not sure what to make of Roberts opinion in King

    1) Did he change his vote in order to write an opinion that did not expand chevron (through making chevron completely moot in the process) or,
    2) did he vote with the majority since he did not want to admit he screwed up ACA the first time.
    3) or Both

    joe (debac0)

  13. Well, if you want to go by the plain meaning, setting of district boundaries is not mentioned at all. Just the right of the legislature to say when and where people can cast their vote in an election.

    And of course you say setting of district boundaries is implied in that….but it is not the plain meaning of the text.

    kishnevi (870883)

  14. I must be old. I remember when the Supreme Court was the judicial branch of government. That must of been before Bork’s nomination failure.

    CrustyB (69f730)

  15. Way past time:

    https://nicedeb.wordpress.com/2015/06/29/forumis-it-time-to-replace-the-gop-would-you-support-a-new-party/

    Government is a comprehensive failure. Pull the plug.

    DNF (208255)

  16. Having grabbed that Electric Eel of Hope-n-Change, Our Supreme Whatevers are now just thrashing about in the legal waters, aren’t they?

    A_Nonny_Mouse (362598)

  17. Democrats desperately want straight majority rule government. With their control of corrupt big city machines where even the dead vote, they can always produce enough votes to control various states, making the rest of the state a mere appendage of it’s one or two big cities. See NYS vs. NYC. or California vs LA/San Fran, or Illinois vs Chicago.

    Mike Giles (cf1fdc)

  18. Reading Arizona’s Constitution, I don’t see how the Legislature came up with standing to sue.

    htom (4ca1fa)

  19. Roberts must be schizophrenic. Luckily for him, he’s exempted from Obamacare and will actually be able to get affordable treatment.

    tops116 (d094f8)

  20. 156 – DNF
    My question -Time to sell the farm? and support a new country…

    mg (31009b)

  21. It really is the United States of Calvinball.

    Time for some Rosalyn’s Revenge.

    SarahW (6f3980)

  22. #17: Mike, or Seattle vs Washington State

    The problem with modern elections is that once the Democrats know how many voters selected the Republican candidate, it is a matter of simple arithmetic to determine how many vote need to be manufactured in the bowels of the our urban monstrosities. And even if they screw up and miss by 170 votes, the Judicial Branch will step in and provided the need majority.

    bobathome (f50725)

  23. 20. Well, now is the time to be in cash or commodities that will hold their value like gold, single-malt whisky, ammo, etc.

    Perhaps just sell the improvements, the house, buildings and such that the town might boost the levy on.

    The problem is there’s no wheres else to go–we are sojourners in a foreign land.

    Economic collapse is set to continue thru 2020 as descending a staircase. We have today stepped off a landing and are headed a good bit down.

    Our best bet is to drag our feet, obstruct, obfuscate and holler ‘Murder’ and at every turn to bleed the State as tho of the Borg.

    Good huntin’, brother.

    DNF (ff323e)

  24. Patterico’s ,

    Sorry, while I agree with you on the legislature question I would still think the Arizona legislators would lose this case on the Congressional override matter. Apparently there is in fact a federal law on election procedures that is far broader than just leaving it up to the state legislature.

    Soronel Haetir (86a46e)

  25. So, DNF @ 5:10 pm —

    You’ve been reading Sultan Knish, haven’t you ?!?!?

    :)

    [In case not, this is the link:]
    http://sultanknish.blogspot.com/2015/06/be-best-saboteur-you-can-be.html

    A_Nonny_Mouse (301a60)

  26. huh? this was a case about drawing election districts, no?

    btw: EPA lost today.

    and somehow the striking down of ‘vague’ minimum sentencing on Friday did not get mentioned here.

    As DRJ noted, I have been very busy at work. I am willing to blog for compensation instead of doing what I currently do for a living — but you might not like the price.

    Patterico (3cc0c1)

  27. 25. Yes i have but stealing from others as well via Larwyn’s links.

    Just call me and aggregator please.

    DNF (ff323e)

  28. “The Times, Places and Manner of holding Elections for Senators and Representatives” does not seem to include “the drawing of district lines.” Traditionally the legislatures have been given this power in state constitutions, but in California at least “All political power is inherent in the people.”

    And the People, through their Initiative power to overrule and bind the Legislature to their will, have decided to establish a commission to handle this task. Nor is this the first time that a body other than the legislature has drawn district lines in California: the state Supreme Court has done it as recently as 1990. Further, under the old system, the People could reject the districts drawn by the legislature and iirc they have done so in the past.

    And nobody said Boo.

    But perhaps I missed it in the margins someplace. Does “manner” mean “draws the district lines” in some ancient decision? Because failing that, and judging by CA history, it sure doesn’t seem to apply here. Can’t speak for Arizona.

    Kevin M (25bbee)

  29. Patterico–

    I am amazed you find the time you do.

    Kevin M (25bbee)

  30. It would seem that in California at least, the Legislature would have to sue the People for relief, as it was the People that put this plan in place. Oh, perhaps they would sue the Secretary of State or some election official, but it is the People they are really suing and I don’t think they have standing for that.

    Kevin M (25bbee)

  31. the law doesn’t matter, raw power does, this decision removes the authority from the GOP and gives it to Soros type ‘independent’ groups, as reliable as pro ‘skydragon’ scientists,

    narciso (ee1f88)

  32. #3: Obama has it differently “The judicial Power of the United States, shall be vested in the President, as will the Legislative power”.

    Kevin M (25bbee)

  33. If the AZ legislature doesn’t like the commission, they should put a repeal on the ballot and make their case.

    Kevin M (25bbee)

  34. wondering why this country is effed up, Bunky? it’s what happens when a nation elects some obscure, no-account, unaccomplished, narcissistic D-bag from the shi+hole called Chicago politics. An unqualified, anti-American, Islam-loving, race-baiting, community organizing turd who despite all the glitter, glam and hype dumped on him, is still a malevolent turd. And we have this guy “leading” the greatest nation that has ever existed and running it with great purpose and by design straight into the ground.

    Sometimes I’m grateful I don’t have that much time left.

    Colonel Haiku (2601c0)

  35. I just remembered. What happened to Kagan’s “One fish, two fish, red fish, blue fish”?

    nk (dbc370)

  36. FYI, tonight on FOX’s Kelly File she’s reporting that Donta Allen’s original statement (later he repudiated it) that Freddy Gray was trying to injure himself in the back of the paddy wagon was video taped.

    ropelight (44989b)

  37. the narrative, so do I hate that word, determines all:

    https://www.youtube.com/watch?v=36Vru3hwZfA

    narciso (ee1f88)

  38. It can also mean “the People of the state through a ballot initiative.”

    So, poll taxes are ok, then?

    You know… on conservatives

    IGotBupkis, "Si tacuisses, philosophus mansisses." (225d0d)

  39. Roberts missed his true vocation: politician. He appears to be a master of the useless dissenting vote, as if he counted all the votes and decided to throw in his opinion on the other side to obscure his support for what he wanted all along.

    Patricia (5fc097)

  40. re #26: i was surprised because the case involved 2, if not 3, of your hot button issues.
    so i expected some opinion from you about the decision.
    I am not going to apologize for expressing an opinion that anyone took afront to.

    seeRpea (0cf003)

  41. it’s like the Augean Stables, there’s only so much one can navigate through,

    narciso (ee1f88)

  42. Narciso, we are experiencing the COSTANZIFICATION of our COUNTRY. It’s as if George Costanza and George Orwell knew each other.
    Cisnormative White Broads, freakishly acting, profiting and living a LIE. Where laws are created and stamped with SCOTUS approval, for fear of the CONSEQUENCES of being honest??
    Was that wrong??? Nobody told me that having SEX with the cleaning lady under my desk was wrong!!

    Gus (7cc192)

  43. You know, this is the same wording that prevents secession of a portion of a state by initiative…
    I don’t *like* the fact that they’re ignoring plain meaning, but if they’re going to interpret it wrong, we might as well use it against them.

    How would you use it against them? Even in a state where the people function as a legislature, the secession would have to be approved by a referendum of the whole state, not just the portion that wants to secede. If the secession was approved by the voters of the whole state, what makes you think the majority in this case would be unhappy with that?

    Milhouse (a04cc3)

  44. Well, if you want to go by the plain meaning, setting of district boundaries is not mentioned at all. Just the right of the legislature to say when and where people can cast their vote in an election.

    Um, read it again. It says when, where, and how.

    Milhouse (a04cc3)

  45. Reading Arizona’s Constitution, I don’t see how the Legislature came up with standing to sue.

    Arizona’s constitution has nothing to do with it; they sued under the federal constitution. Either branches of a government have the right to sue, or they don’t. Scalia and Thomas say they don’t, and point to a long history in which there is at most only one case in which the court agreed to entertain such a suit; the majority have somehow made out that they do.

    Milhouse (a04cc3)

  46. Was that wrong??? Nobody told me that having SEX with the cleaning lady under my desk was wrong!!

    I don’t know if you’re joking, Gus, but that is the standard for qualified governmental immunity as established by Scalia.

    nk (dbc370)

  47. Sorry, while I agree with you on the legislature question I would still think the Arizona legislators would lose this case on the Congressional override matter. Apparently there is in fact a federal law on election procedures that is far broader than just leaving it up to the state legislature.

    No, there isn’t. The federal law just sets default districting laws to be followed if the state didn’t get around to it by election time. If a state has drawn districts, as AZ has, then the federal law is silent.

    Milhouse (a04cc3)

  48. “The Times, Places and Manner of holding Elections for Senators and Representatives” does not seem to include “the drawing of district lines.”

    Of course it does. I don’t understand how it could not. The manner of voting must include whether they shall do so in districts, and if so what those districts should be.

    Further, under the old system, the People could reject the districts drawn by the legislature and iirc they have done so in the past.

    There’s no constitutional problem with that. State law can authorize the governor, the people, a commission, a court, or anyone else, to veto what the legislature has done, and send it back to the legislature to do it again. But none of the above can usurp the legislature by doing it themselves.

    Unless, as I believe, the people of Arizona are a state legislature. Which may violate the Republican Guarantee clause, but that’s been held not to be justiciable since the Court refused to get involved in the Maine revolution.

    Milhouse (a04cc3)

  49. If the AZ legislature doesn’t like the commission, they should put a repeal on the ballot and make their case.

    The constitution says otherwise. If it is the only legislature the state has, then the people have no right to give power over federal elections to anyone else, any more than they have the right to give the power to ratify constitutional amendments to anyone else.

    My point is that under the AZ constitution the people are a legislature, and therefore can fill all the functions that the federal constitution assigns to state legislatures.

    Milhouse (a04cc3)

  50. FYI, tonight on FOX’s Kelly File she’s reporting that Donta Allen’s original statement (later he repudiated it) that Freddy Gray was trying to injure himself in the back of the paddy wagon was video taped.

    How could Allen possibly have known what Gray was trying to do? All he can testify to is what sounds he heard; his inferences from those sounds are irrelevant.

    Milhouse (a04cc3)

  51. So, poll taxes are ok, then?

    Poll taxes have always been OK. There’s no reason at all why Congress or a state cannot impose a poll tax, just like any other tax. (A federal poll tax would have to be apportioned, but that would be very easy to do, since each state’s population is, by the most amazing coincidence, in exact proportion to its population.)

    Are you under the strange (but oddly very common) misconception that a “poll tax” means a tax on voting?

    Milhouse (a04cc3)

  52. Are you under the strange (but oddly very common) misconception that a “poll tax” means a tax on voting?

    Then what’s it a tax on, poll dancing?

    Rev. Barack Hussein Hoagie (f4eb27)

  53. Every definition I see defines poll tax as a tax on voting or a tax that relates to voting.

    DRJ (1dff03)

  54. A poll tax is a set amount per person. Post Reconstruction proof of paying the tax was used as a way of limiting the franchise… no reciept, no voting unless you were able to shoow you voted before 1867. This worked against blacks and poor whites, and is probably why people associate poll taxes with voting.

    A combination of the 24th Amendment and the Supreme Court cut off the linkage to voting but as Milhouse said poll taxes in isolation are still valid.

    kishnevi (294553)

  55. I’m still trying to figure out why a poll tax, a tax on our right to vote, is somehow illegal but tax to buy, register or carry a firearm is perfectly okay. IOW, to tax a person to exercise his right to vote is unconstitutional but to tax a person to exercise his right to bear arms is legal.

    Rev. Barack Hussein Hoagie (f4eb27)

  56. ???
    From the very top of your link, Google declareth
    noun
    a tax levied on every adult, without reference to income or resources.

    kishnevi (93670d)

  57. Poll as in head. Archaic meaning. Head tax. A tax per person. For existing. That’s where the commonly used “polls” and “polling” come from, too. Counting heads.

    nk (dbc370)

  58. to tax a person to exercise his right to vote is unconstitutional but to tax a person to exercise his right to bear arms is legal.

    “To tax a person to exercise his right to vote is unconstitutional” only because the constitution specifically says so. It doesn’t say anything about taxing other rights, which is why it’s legal to tax newspapers. Like any tax, it can’t be so burdensome as to be effecively a penalty (which brings us back to Sebelius).

    Milhouse (a04cc3)

  59. Milhouse, back when California originally started imposing a sales tax on newspapers, I thought it was unconstitutional – if they can tax newspapers at all then either (a) they can impose confiscatory taxes that destroy the newspaper, or (b) there is some magic line at which taxes cease to be ok, whose location can ONLY be divined by courts.

    It seemed to me then that a bright line rule prohibiting sales taxes on newspapers would be *clear* and *easier to implement* and *less subject to arbitrary abuse* than a vague magic-line rule.

    I still think that, although clearly the courts disagree with me.

    aphrael (69b4f7)

  60. Anyone who hasn’t clicked on narcisco’s link at #38 should do it now. It’s moderately significant.

    ropelight (1ea9d8)

  61. aphrael, as the court said in Bailey v Drexel Furniture, and reaffirmed in Sebelius, a tax that is so onerous that it effectively bans the conduct taxed is no longer a tax but a penalty.

    Milhouse (a04cc3)


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