US Politics: A Sinematic view on voting rights and the filibuster

[Ser Scot A Ellison]

16 minutes ago, DMC said:

No.  I think you're preferring to identify with a made up ideology espoused by white supremacists.

Why is giving words their obvious meaning inherently supremicist?

[DMC]

7 minutes ago, Ser Scot A Ellison said:

Why is giving words their obvious meaning inherently supremicist?

The constitution is inherently white supremacist.  I think it's about time we all acknowledge that.

[Ser Scot A Ellison]

8 minutes ago, DMC said:

The constitution is inherently white supremacist.  I think it's about time we all acknowledge that.

Then it is long past time we had a Constitutional Convention change it.  I’ve been saying it’s time for at least two decades.

[DMC]

1 minute ago, Ser Scot A Ellison said:

Then it is long past time we had a Constitutional Convention change it.  I’ve been saying it’s time for at least two decades.

And Jefferson believed every generation had the right to design their own government.  This isn't anything new.  It's never gonna happen, but you're certainly not the only one.

[Kalbear]

4 hours ago, Ser Scot A Ellison said:

Then it is long past time we had a Constitutional Convention change it.  I’ve been saying it’s time for at least two decades.

That would be a non-textualist viewpoint. 

[Mlle. Zabzie]

I think you all may be conflating textualism, with strict contructionism, with originalism.  (My own philosophy is closer to Burger’s plain meaning, and I do think that in the interstices of the law legislative history is important, and I am definitively not an originalist).

In my view, textualism is a very important method of statutory analysis, and in fact, all rigorous analysis begins there.  Textualism looks to the ordinary meaning of words as phrased.  I think the famous Scalia example is in a rather scathing dissent, where he lambasted the majority for leaving a maximum sentence in place for a drug offender that traded an unloaded gun for crack (or maybe powder - it’s been a while).  The question was whether the perpetrator “used a gun” in a drug crime.  He rightly said that while, indeed, a gun was used as consideration in the exchange, it was not the ordinary meaning of “using a gun” to commit a crime (the majority took a more strict constructionist approach, with a dash of intent).  The problem with strict textualism is that it pretends that there is some known and stable meaning of words and groups of words.  This, of course, is faradiddle.  Look, for instance, at the evolution of the word “awesome” that has basically happened in my lifetime.  Some try to fix it then with originalism, but that muddies the waters and goes back to the whole “intent” idea that the textualism was trying to avoid.  So, in the relatively famous example above, Scalia was basically and grumpily saying “everyone knows what using a gun to commit a crime means and this ain’t it,” which presumes that he knew what the authors meant when they wrote the words.  But to circle back around, completely throwing away textualism is stupid, and the arguments I have seen against it look like reactionary pablum.  Laws should, in the first instance, be given their plain mean, IMO, as a reasonable person would understand them.  This is important because law should be as accessible as possible to the non-lawyer.  It should not take a lawyer, and hours of research into congressional hearings to understand what a judge might think a law might mean.  Nor should judges have unlimited power to exercise legislative or executive power through filling in their own interpretations of what the words mean to advance a policy goal - the blue pencil should be used sparingly.  People have unfairly gone after judges like O’Connor, Kennedy, and to a certain extent Sotomayor for having an “inconsistent judicial philosophy”.  I think the real answer is that they have tended to take a more practical and balanced approach to reasoning that pulls from several different other “theories.”  They just haven’t been clever enough to call it something and market themselves as such....

[Mr. Chatywin et al.]

I think the larger problem is that regardless of the legal philosophy, there's a high tendency to ignore it when it gets in the way of one's specific opinions on an issue.

[Ser Scot A Ellison]

1 hour ago, Mlle. Zabzie said:

I think you all may be conflating textualism, with strict contructionism, with originalism.  (My own philosophy is closer to Burger’s plain meaning, and I do think that in the interstices of the law legislative history is important, and I am definitively not an originalist).

In my view, textualism is a very important method of statutory analysis, and in fact, all rigorous analysis begins there.  Textualism looks to the ordinary meaning of words as phrased.  I think the famous Scalia example is in a rather scathing dissent, where he lambasted the majority for leaving a maximum sentence in place for a drug offender that traded an unloaded gun for crack (or maybe powder - it’s been a while).  The question was whether the perpetrator “used a gun” in a drug crime.  He rightly said that while, indeed, a gun was used as consideration in the exchange, it was not the ordinary meaning of “using a gun” to commit a crime (the majority took a more strict constructionist approach, with a dash of intent).  The problem with strict textualism is that it pretends that there is some known and stable meaning of words and groups of words.  This, of course, is faradiddle.  Look, for instance, at the evolution of the word “awesome” that has basically happened in my lifetime.  Some try to fix it then with originalism, but that muddies the waters and goes back to the whole “intent” idea that the textualism was trying to avoid.  So, in the relatively famous example above, Scalia was basically and grumpily saying “everyone knows what using a gun to commit a crime means and this ain’t it,” which presumes that he knew what the authors meant when they wrote the words.  But to circle back around, completely throwing away textualism is stupid, and the arguments I have seen against it look like reactionary pablum.  Laws should, in the first instance, be given their plain mean, IMO, as a reasonable person would understand them.  This is important because law should be as accessible as possible to the non-lawyer.  It should not take a lawyer, and hours of research into congressional hearings to understand what a judge might think a law might mean.  Nor should judges have unlimited power to exercise legislative or executive power through filling in their own interpretations of what the words mean to advance a policy goal - the blue pencil should be used sparingly.  People have unfairly gone after judges like O’Connor, Kennedy, and to a certain extent Sotomayor for having an “inconsistent judicial philosophy”.  I think the real answer is that they have tended to take a more practical and balanced approach to reasoning that pulls from several different other “theories.”  They just haven’t been clever enough to call it something and market themselves as such....

Thank you.

[DMC]

57 minutes ago, Mlle. Zabzie said:

I think you all may be conflating textualism, with strict contructionism, with originalism.

Pretty much, yeah.  Your Scalia/crackhead example has nothing to do with the constitution, which is what I'm talking about.  In terms of, ya know, actually being a lawyer, I'm sure those terms have important distinctions.  But politically they don't really.  And, importantly, when it comes to approaching the constitution, they don't.  That's one thing that's always seemed absurd to me, btw.  My sister is a lawyer, and my brother in law.  Pretty successful ones too.  But neither has anywhere near my knowledge of the constitution, and never will.  Applying these terms to jurists is in and of itself bullshit, albeit I suppose "textualist" can mean quite a bit more that has little/nothing to do with the constitution.

[DireWolfSpirit]

13 hours ago, A Horse Named Stranger said:

Going back to the Simone family v State of California (or Kamala Harris as they put it).

 

I think this might be actual settlement.

Only skimmed through it. Somebody who speaks legalese (particularly the American English dialect) like Scot or Zabz can feel free to point out comprehension errors on my part.

But the main issue seemed to be.

Nina Simone wrote a will that left her estate (almost in its entirety) to the foundation to promote the musical education of kids in parts of Africa. Her daughter contested that by means of the French inheritance law (where Simone spent her final years), thus claiming half of her Simone's estate (going against Nina's will obviously) and taking money away from Simone's charity. Enter the Cali. AG office (Kamala Harris) as the legal representation of the charities in the state of California. Apparently Simone Kelly also misused funds in her funcion as trustee of the Simone Charity (at least that can be read between the lines there).

The short of it. The AG agreed to drop the investigation in the financial shenanigans, if  Simone Kelly agreed to stop trying to overwrite Nina Simone's will (likesay trying to fight it in a French court with the French inheritance laws). Furthermore Simone Kelly is barred from serving as a trustee on charities in Cali and has effectively been cut loose from Nina Simone's legacy. So she can't benefit from her mum's name financially (with a few named exceptions).

Oh yeah, and it looks like Harris wasn't even the lead council on this one, her Deputy Sonja K. Berndt has put her name under the settlement.

There was another article today in Newsweek about the estate. The family is saying that the charitable trust wasn't yet active till it cleared probate and on and on... the opposite sides on this thing our never going to see eye to eye imo.

https://www.newsweek.com/kamala-harris-threatened-nina-simone-daughter-jail-time-granddaughter-1602531

[Fragile Bird]

4 hours ago, DireWolfSpirit said:

There was another article today in Newsweek about the estate. The family is saying that the charitable trust wasn't yet active till it cleared probate and on and on... the opposite sides on this thing our never going to see eye to eye imo.

https://www.newsweek.com/kamala-harris-threatened-nina-simone-daughter-jail-time-granddaughter-1602531

That’s interesting.

Under French law you can’t disinherit your children. If you have one child they are entitled to half the estate.  Kelly, Simone’s daughter, sued the lawyers in the US for choosing the wrong jurisdiction for probate, California instead of France. I assume they did that because 1) Kelly lives in California, 2) the condo she inherited was in LA, and 3) they knew nothing about French law and assumed California law was the best jurisdiction.

Kelly may have a point there. The key factor is valuations, what was the value of the LA condo, the French house and the residuals from the recordings. If the condo was worth less than half of the value of the house in France and the residuals, I’d sue the lawyers too. 
 

Even more interesting to me is the claim in that story that the charity didn’t exist until probate was granted and probate wasn’t granted in France so the charity didn’t exist, so it was okay for Kelly to use money in the charity to sue the lawyers who did the probate so that she could get her inheritance. But, probate was in fact granted in California, she got the condo, she ran the charity and she used the money from the charity to sue the lawyers, on the basis, I guess, that it was her money anyway because she was entitled to half the estate. It’s rather difficult for me, though, to agree California, represented by Harris, was interfering in the estate when money from a charity was being used against the rights of the charity to the benefit of the person who was supposed to protect the charity.

I’d still like to know what eventually happened in France. And I’d like to know who wrote the will in the first place. Was it an American lawyer who drafted the will in accordance with the wishes of Nina Simone, but unaware of French law? Was Simone in the US, touring, so they thought (or were even told) she had moved back to the US, so French law wasn’t important? Did a French lawyer draft the will? Why didn’t Kelly use them for probate? 
 

[Mlle. Zabzie]

11 hours ago, Tywin et al. said:

I think the larger problem is that regardless of the legal philosophy, there's a high tendency to ignore it when it gets in the way of one's specific opinions on an issue.

Well, that is why I attempted to point out that in some ways O’Connor, etc. IMO are more intellectually honest....

10 hours ago, DMC said:

Pretty much, yeah.  Your Scalia/crackhead example has nothing to do with the constitution, which is what I'm talking about.  In terms of, ya know, actually being a lawyer, I'm sure those terms have important distinctions.  But politically they don't really.  And, importantly, when it comes to approaching the constitution, they don't.  That's one thing that's always seemed absurd to me, btw.  My sister is a lawyer, and my brother in law.  Pretty successful ones too.  But neither has anywhere near my knowledge of the constitution, and never will.  Applying these terms to jurists is in and of itself bullshit, albeit I suppose "textualist" can mean quite a bit more that has little/nothing to do with the constitution.

So I’m going to call you on this.  Your response appears to be (a) yes, Zabzie is correct, the discussion is conflating textualism, originalism, and strict constructionism, but (b) it doesn’t matter because of course, you were talking about the Constitution, which is different, and (c) who cares because only lawyers care about such distinctions and (d) you know more about the Constitution and the construction thereof than your successful lawyer sister and and brother-in-law, and so (e) its bull$hit to apply these terms to the Constitution?

What the suffering sequitur?  

 

[Mr. Chatywin et al.]

57 minutes ago, Mlle. Zabzie said:

Well, that is why I attempted to point out that in some ways O’Connor, etc. IMO are more intellectually honest....

You did, and while I don’t completely agree with your post was very well written (and the example with Scalia is quite interesting). I just felt the need to really drive home the point that the problem is less with textualism in a vacuum and more with how individuals apply it and use it at times as a claim of moral and/or intellectual superiority, which we often see on the right today.

[Ser Scot A Ellison]

8 minutes ago, Tywin et al. said:

You did, and while I don’t completely agree with your post was very well written (and the example with Scalia is quite interesting). I just felt the need to really drive home the point that the problem is less with textualism in a vacuum and more with how individuals apply it and use it at times as a claim of moral and/or intellectual superiority, which we often see on the right today.

Scalia was among the worst when it came to “outcome” based legal rationales.  It drove me crazy.

[A Horse Named Stranger]

8 hours ago, DireWolfSpirit said:

There was another article today in Newsweek about the estate. The family is saying that the charitable trust wasn't yet active till it cleared probate and on and on... the opposite sides on this thing our never going to see eye to eye imo.

https://www.newsweek.com/kamala-harris-threatened-nina-simone-daughter-jail-time-granddaughter-1602531

The argument is kinda non-sensical imho. I mean that sounds like: as long as the trust isn't active, I can spend all the money as I see fit (in extreme, it's fine to brun through the entire estate, before the trust is active thus starting the trust with nothing). The judge presiding over this case pretty much agreed that this argument wasn't valid, as he granted standing to the Cali. AG office.

Otherwise, yeah, Harris's office pointed out that, the Simone Kelly could go to jail over her financial shenanigans with the estate's money (embezzlement/misappropriation of funds). Offering her to make it all go away, if she stopped challenging the will under French inheritance law. That can be read in the settlement. Like I said, the threat of jail time was very visible between the lines there.

Like I said, I find very little fault at the Cali's AG's handling over the matter. If Simone Kelly has an axe to grind, then she should take it to lawyers drafting her mum's will, or her mum in some sorta afterlife or an episode of Hollywood Medium hosted by Random Fraud.

[IheartIheartTesla]

I've said this before, but I find debating the Constitution (in its current form) frustrating. A more 'scientific' approach is to start with a series of 'first principles' and construct a set of laws from it. An example of this would be where you replace the Second Amendment with its mumbo-jumbo about militias with a principle such as a right to self-defence (of course, phrased in sharper legal language)

Anyway, maybe its to difficult when you include human behavior and interactions to go this path. A constitutional convention sounds lovely though.

[Mlle. Zabzie]

50 minutes ago, Tywin et al. said:

You did, and while I don’t completely agree with your post was very well written (and the example with Scalia is quite interesting). I just felt the need to really drive home the point that the problem is less with textualism in a vacuum and more with how individuals apply it and use it at times as a claim of moral and/or intellectual superiority, which we often see on the right today.

Yeah, completely agree with this.  (And I used Scalia, taking what today would be viewed as a more left wing outcome, on purpose, and also because I remembered it, but completely agree that he was sort of an intellectual fraud when it came to the application of his “philosophy”, and has been able to skate through that in some peoples’ estimation based on his very, very powerful writing).  

IMO one of the very most dishonest applications of the various legal principles described above is the second amendment.  I’ve pasted the text below.  It’s a disaster of a sentence, particularly through a modern grammatical lens.  It’s in the passive voice.  The commas are arguably decorative.  And the first clause, as best I can tell, has been more or less read out of its meaning.  But no one on the right cares at this point because, alternatively, ORIGINALISM!  STARE DECISIS!  FREEDOM!  IT SAYS “RIGHT”!

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

[Mr. Chatywin et al.]

58 minutes ago, Ser Scot A Ellison said:

Scalia was among the worst when it came to “outcome” based legal rationales.  It drove me crazy.

Scalia came across as normally having his mind made up before even hearing the merits of a case, yes.

Since we’re talking about the SC and the lawyers are here to play, does the NCAA ruling also open the door to possibly doing away with unpaid internships?  

[Mlle. Zabzie]

5 minutes ago, Tywin et al. said:

Scalia came across as normally having his mind made up before even hearing the merits of a case, yes.

Since we’re talking about the SC and the lawyers are here to play, does the NCAA ruling also open the door to possibly doing away with unpaid internships?  

1. He was known for actually reading the briefing materials and the lower court record and I think it is correct that his mind was firmly made up by the time of oral argument (90 percent plus of the time). 
 

2. Lord I hope so. 

[Ser Scot A Ellison]

9 minutes ago, Tywin et al. said:

Scalia came across as normally having his mind made up before even hearing the merits of a case, yes.

Since we’re talking about the SC and the lawyers are here to play, does the NCAA ruling also open the door to possibly doing away with unpaid internships?  

The key, in my opinion, was the tautological definition of “student athlete” as unpaid in order to justify not paying all student athletes in the NCAA.  These “unpaid internships” can and do lead to paid positions in the same organization as such the circumstances are a bit different.

I still don’t like unpaid internships.