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15 minutes ago, soupslam1 said:

Don’t worry, he’s anti Trump. I’d compare his OT posts very similar to yours. 

...since 1988.  Didn’t much care for him earlier that decade and this decade and the last haven’t helped. 

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2 minutes ago, grandjean87 said:

...since 1988.  Didn’t much care for him earlier that decade and this decade hasn’t helped. 

Where do you fall on the political spectrum?

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1 minute ago, Maji said:

Where do you fall on the political spectrum?

I did take that “test” that was posted here recently. I think it’s not a bad starting point of discussion, but I would probably take issue with the horizontal axis (questions/responses used for the left-right metric). I’m definitely pro-market. 
 

9E2C97BF-5CB0-4FCC-9FE2-10F6A7814ED3.png

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1 hour ago, smltwnrckr said:

So, he's a word fascist? Well I dunno about this, then. 

So I was talking to GJ on facebook last night, and this is what I said (talking about you).  The OT board got a little smarter and more reasonable, he reminds me of you a lot but less Libertarian.  
image.png.3c6af3e495ea536afb312e8d4b53770b.png
 

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25 minutes ago, grandjean87 said:

I did take that “test” that was posted here recently. I think it’s not a bad starting point of discussion, but I would probably take issue with the horizontal axis (questions/responses used for the left-right metric). I’m definitely pro-market. 
 

9E2C97BF-5CB0-4FCC-9FE2-10F6A7814ED3.png

You should give this one a try:

https://8values.github.io/

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10 minutes ago, grandjean87 said:

that’s a lot of questions to answer before at least a third Oktoberfest 

It goes by within a few minutes. You don't have to take it though ofc

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23 hours ago, smltwnrckr said:

You're talking about governance, I'm talking about power. The state exercised power long before our constitution was written. It did so on other continents. It will continue to do so after the United States isn't a thing any more. The way power is imbued and delineated are situated in a particular place and time. It's a great! way to organize the state (the best way as far as I can tell), but it will go with time. It's not a universal truth. Hopefully I'll be dead when that comes to pass.

You were talking about state power, which is governance. Power is exercised in all sorts of ways not at the whims of governance. Those mobs robbing stores in Philadelphia of washing machines and big screens and 100 pairs of shoes, having their business destroyed, with no state power there to defend them...that’s money taken out of their pockets that they won’t get back in full if at all. A bully stealing lunch money exercises power, but not state power. This entire conversation, and thread, is a discussion about the Supreme Court. That’s governance and state power to its very core.

23 hours ago, smltwnrckr said:

Also, I would actually take exception with the idea that the power that the state exercises is the power that is imbued in it by its citizens. The modern bureaucratic state to a large extent has obscured the connection between the citizens and those who are empowered to act (supposedly) on their behalf. The worst thing about the Trump administration may be the fact that he's sullied the concept of the deep state. Most state power is exercised by unelected bureaucrats who are largely unaccountable to the citizenry. But that's not really what I'm talking about here. 

I’m inclined to agree that the civil state of the last century or so has removed the governed one step farther from their intended place in imbuing power to the state. But that’s a confluence of things that came about with the modernity of the 20th century, Congress's abdication of its supreme power, the Court stepping in to fill its place, and perhaps the will of the citizens to imbue more power into one person that can speak abstractly for them than a messy legislature that can specifically but does so ineffectively. I do scoff at the sullying of the “good name” of the deep state is the worst thing or even regrettable of Trump’s Presidency. They’d shown themselves to be awful long before these past few years and have done little to cover themselves in glory ever since.

23 hours ago, smltwnrckr said:

I'm not that surprised. Competing discourses change each other and lead to new discourses. I don't have any more or less of a problem with originalism or any other legal theory, other than I wish people with a boner for the judiciary would admit that they're largely vehicles for ruling as ideologically as possible. 

Kinda what I've been saying... we have a cultural change upon us re: the new American conservatism. The law doesn't exist in a vacuum, hence my concern over a supermajority on the court and its ability or willingness to hold off what I believe will be some intense volleys from the socially conservative right in the next decade or two.

Originalism is only conservative in the sense that the constitution is conservative. Elena Kagan said in her hearing “We are all originalists.” This is why she has found it so easy to transition from lobbying the court to side with Kennedy and Ginsburg, to doing so with Roberts and Kavanaugh, and when the opportunity arises Gorsuch. The most of them are finally speaking the same language, and that language is not solely ideological or socially conservative. What that language does do is make strictly written laws and legislation less open to expansive interpretation, or flatly making shit up, that we’ve come to expect.

23 hours ago, smltwnrckr said:

I mean, no... it was also an expansion of personal freedom for consenting adults who believed they should be able to get married and the government shouldn't have any say in that decision. It was not an expansion of liberties for people who are opposed to two consenting adults entering into that contract. Which is fine, they get to oppose that. But it wasn't just five despots who saw that decision as an expansion of personal freedom. 

That is a flat out false framing. The entire argument was for the government to treat something that had been voted against, to treat it as if it had been voted for without the say of the people. It was exactly a usurpation of the power of the voters by 5 enlightened despots unaccountable to them. A contract is inherently a government issue, marriage in practice is not. Those who cheered the decision and those who decried it were not insubstantial, but neither of their voices mattered because the 5 spoke.

23 hours ago, smltwnrckr said:

As for that ballot question, I think that is great that you support that. I generally support both of those sides too. I do have to point out that it is highly unlikely that you would get that ballot question without the messy decisions in the courts that have occurred in the recent past re: the cakes and the gays and the wedding rings. So the idea that you can point to that ballot measure and say that's how it is supposed to work, period, ignores how we got to this place. And I do think that on a practical level that ballot initiative will lead to another messy legal case because there are going to be instances where those two mandates are irreconcilable. I don't know what it will be, but it will happen. And it will probably lead to another messy court case. But I'd probably still vote for it, if not to move things along in the right direction. 

There may be a messy legal case or two. But to get back to the point of the thread, they would likely be much less messy because the question clearly and precisely is written. Gays can get married, religious practitioners are immune from lawsuit for not participating. It would go into the state constitution. Not just law, but the constitution. That’s how good we should expect our laws to be written. And with a wide agreement on judicial philosophy, we’ll get that. Whether it’s conservative or progressive legislation, we’ll get that.

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9 hours ago, thelawlorfaithful said:

You were talking about state power, which is governance. Power is exercised in all sorts of ways not at the whims of governance. Those mobs robbing stores in Philadelphia of washing machines and big screens and 100 pairs of shoes, having their business destroyed, with no state power there to defend them...that’s money taken out of their pockets that they won’t get back in full if at all. A bully stealing lunch money exercises power, but not state power. This entire conversation, and thread, is a discussion about the Supreme Court. That’s governance and state power to its very core.

You're right that power exists outside of the state. That's not opposed to my point, which is not that the state is the only thing that exercises power. An individual can exercise power, a mob can exercise power, the state can exercise power. They're all just basically machines, mobilizing energy to do work for some task. Governance dictates the way that power is exercised, or at lease supposed to be exercised. So if cop kills a man, he is exercising power. If he did it illegally, he is acting outside of governance while still exercising state power. In some states, there is very little difference between state power and governance... if the state did it, then it is by definition governance. Our system is (supposed to be) special because it differentiates between the state exercising power legitimately and illegitimately. And in order to do that, it organizes the machine pretty inefficiently so that power is exercised legitimately. And part of the supreme court's job is to distinguish between power and governance - or maybe a better way to put it is to distinguish whether the state is exercising power legitimately or illegitimately, with the blueprint for legitimacy (governance) being the constitution. So yes, the supreme court is exercising power but it is doing so within that context... it is deciding whether an expression of state power fits inside our rulebook for governance or not. So there is a difference. A big one, IMO.

My point in talking about power is that power exists outside of our state, and outside of the state in general, as you pointed out. Power was exercised in California long before the state existed. The state existed in California long before 1776, and it existed long before 1850. Governance has changed multiple times here since the state arrived (or emerged, depending on how you look at it). IMO, it is important to distinguish between those because the constitution organizes the state to limit the ways in which it can exercise power. It ordered governance, and if it had ordered governance a different way the state would still have been there in some form to exercise power. Yes, the state understands the constitution as the document that empowers it to do things... and it reads the constitution that way. But rule books are more about telling what you're not allowed to do than what you're allowed to do. When you're exercising power and following the rules, that's governance. And so the existence of that rule book limits power. 

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I’m inclined to agree that the civil state of the last century or so has removed the governed one step farther from their intended place in imbuing power to the state. But that’s a confluence of things that came about with the modernity of the 20th century, Congress's abdication of its supreme power, the Court stepping in to fill its place, and perhaps the will of the citizens to imbue more power into one person that can speak abstractly for them than a messy legislature that can specifically but does so ineffectively. I do scoff at the sullying of the “good name” of the deep state is the worst thing or even regrettable of Trump’s Presidency. They’d shown themselves to be awful long before these past few years and have done little to cover themselves in glory ever since.

I think you misunderstood me when I referred to the "deep state." My point is the same as yours. What I was saying is that the Trump presidency took your argument here (which I share) and turned it into a QAnon conspiracy theory.

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Originalism is only conservative in the sense that the constitution is conservative. Elena Kagan said in her hearing “We are all originalists.” This is why she has found it so easy to transition from lobbying the court to side with Kennedy and Ginsburg, to doing so with Roberts and Kavanaugh, and when the opportunity arises Gorsuch. The most of them are finally speaking the same language, and that language is not solely ideological or socially conservative. What that language does do is make strictly written laws and legislation less open to expansive interpretation, or flatly making shit up, that we’ve come to expect.

Again, that's not surprising to me. It's a dialectical process... and its why conservative legal minds are to some extend abandoning originalism for a new legal theory to create conservative outcomes. Originalism will be useful to conservatives until it is not, and the concept that all judicial theory is "originalism" and you still get split decisions on major social issues speaks to the fact that originalism is as useful as it can but that these decisions are as much about what people want the country to look like as they are about strict interpretation of the law. I get that statement makes legal scholars and people who deify the judiciary faint. And if you're right, that originalism saves us (or at least people in parts of this country) from right-wing authoritarianism that comes from a continued populist wave, I'll be happy to be wrong. But that wave will result in state legislatures (and potentially federal legislatures, if the wave is big enough) exercising power by vote of the people. And by deferring to those votes, a court would be (or could be, since we don't know what this looks like in the future) embracing the more conservative aspects of the constitution (order, institutions, majorities) over its more liberal aspects (individuals as the most important unit). 

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That is a flat out false framing. The entire argument was for the government to treat something that had been voted against, to treat it as if it had been voted for without the say of the people. It was exactly a usurpation of the power of the voters by 5 enlightened despots unaccountable to them. A contract is inherently a government issue, marriage in practice is not. Those who cheered the decision and those who decried it were not insubstantial, but neither of their voices mattered because the 5 spoke.

Is it false framing? Because from where I stand, it seems pretty clear to me that the point is that most of the people said that some of the people aren't allowed to enter into a contract that most of the people do get to enter into. And the reason why some of the people don't get to enter into that contract is because of who they are, biologically. Seems to me that this is a perfectly legitimate reason for the supreme court to intervene... to decide whether the state (in this case, acting on behalf of most of the people) exercising power in that way abides to the rule book or not. Protecting the minority from the majority, you know? Being anti-democratic when it is necessary, because democratic institutions can be tyrannical just like any other. And I disagree that a contract is inherently a government issue, outside of enforcement by deciding whether or not parties break that contract and what those damages are. And deciding who gets to enter into a contract is especially not inherently a government issue, as far as I can tell, outside of protecting parties from coercion or fraud or something along those lines. I also agree that marriage in practice is not a government issue either, but it has become one as the government has intertwined policy and marriage in ways that can impact individuals profoundly. And, outside of that, once the government decides who can't get married, then all bets are off... it is a government issue by definition. 

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There may be a messy legal case or two. But to get back to the point of the thread, they would likely be much less messy because the question clearly and precisely is written. Gays can get married, religious practitioners are immune from lawsuit for not participating. It would go into the state constitution. Not just law, but the constitution. That’s how good we should expect our laws to be written. And with a wide agreement on judicial philosophy, we’ll get that. Whether it’s conservative or progressive legislation, we’ll get that.

Like I said, I'm just situating the law historically and saying it didn't happen in a vacuum. You can almost certainly do that for any and every other law. Pointing to a law and sayin, "See? That's a great law. They should have made that law earlier" assumes the law could exist without the earlier laws it replaced, and it assumes that the law will not have any problems moving forward... which is what people who made the bad laws in the past also assumed. 

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