Monday, June 21, 2010

Are You Now, Or Have You Ever Been, a Member of the Communist Party?

I am not going to get too worked up about the fact that the Supreme Court has now held that "material support" is a term so broadly defined that it actually encompasses its own antonyms. Given the fact that our president has arrogated to himself the right to have you killed, literally Joe Biden, without any legal recourse or sanction and with no process of law or investigation necessary to legitimize your death, I think we should all consider ourselves lucky to be hauled to court in order to defend ourselves for saying that, oh, I don't know, Hamas is an organization of legitimate national resistance. At least we get our day. Assuming His Obamaness doesn't send in the Seals to garrotte us in the hallway before we hit the defense table.

42 comments:

Enron said...

Just like the word terrorist.

lucid said...

Really! Stevens was in the majority? That surprises the hell out of me...

Jack Crow said...

Whatchagonnado?

Nothing.

That's what.

Not a damn one of us whimbling on the intertubewebs is going to jack fucking shit about this, or anything else.

the talking dog said...

Stevens is a Rockefeller Republican; everyone assumes he is somehow this great "liberal" (whatever that means) because everyone else on the Court (including all too often the Democratic appointees) are so overtly committed to rubber-stamping the preordained outcomes of the rich and powerful, that someone who on occasion issues rulings that gays/Blacks/Latinos/Muslims/vegetarians should not be summarily burned at the stake in sacrifice to Baal instantly makes him a great champion of freedom. He isn't; there are lines he won't cross, to be sure, and he is intellectually honest in a relative sense, and by the standards of our Supreme Rubber Stamp, he's a really good justice and I, in fact, really like him... but he's still what he is. And that is a Rockefeller Republican, as in "Rockefeller Drug Laws."

What's far more interesting is that it was Barack "Constitutional Law Professor MY ASS" Obama's Administration that actually went further than its allegedly bat-sh*t predecessors and took the position that "national security" justifies a law so ambiguous that arguably everyone who has ever not extended their right arm accompanied by a hearty "Sieg Heil!" when the President (any President) suggests it is necessary that we obliterate the evil and dangerous Taliban/Baathists/Palestinians/commies/vegetarians... is now guilty of material support of those most hated groups... whomever they are.

But as IOZ notes... we should all be thankful that some unmanned drone hasn't already obliterated us, and Thank You Sir, May I Have Another? etc. etc.

la Rana said...

So. Entities are persons, money is speech, and said "speech" by said "persons" cannot be restricted by the government because the guarantees of the First Amendment to the Constitution trump government public policy determinations. Citizens United v. FEC (Roberts, CJ).

But. Actual speech by actual persons can be restricted by the government, if the government makes a list of bad people and bad stuff, which makes me poop my pants, because pooping my pants trumps the guarantees of the First Amendment to the Constitution. Holder v. Humanitarian Law Project (Roberts, CJ).

Mr.Fundamental said...

fuck it, let's go bowling.

Inkberrow said...

Heck, we all know the Constitution is a Living Document interpreted by results-oriented jurists. When decisions are handed down which offend their sensibilities, progressives should close their eyes and console themselves by pretending it's "penumbras of privacy" or "women's healthcare" being explicated today as Bedrock Principle under Roe v. Wade. Life and death are antonyms, eh?

la Rana said...

Well now I know what confusion wrapped in incompetence inside moral relativism looks like.

Inkberrow said...

Just like "terrorists", and their apologists.....

Pliggett Darcy said...

If you're under the impression that there are any "progressives" here, you're much mistaken.

I myself dabbled with pacifism at one point.

mds said...

"Heck, we all know the Constitution is a Living Document interpreted by results-oriented jurists."

Well, yes, but given that most of the fuckwits in the majority on this one, not to mention their partisans, constantly claim the opposite, I must say it's a breath of fresh air to have one of those selfsame partisans admit that ... Oh, ho ho, wait, hoist by our own petard, is what you're saying, albeit with no fucking clue what either "petard" or "Living Constitution" mean. For that matter, to whom are you addressing this to begin with? Anarchists? Because I don't actually recall the Monsieur or Mr. Fundamental mounting a stirring defense of penumbras, except possibly during the last solar eclipse.

George Jones said...

Both foreign organizations are "deadly groups," Roberts wrote, that have caused harm to Americans.

Does he mean the music of M.I.A.?

mds said...

Meanwhile, I love the fact that, thanks to this ruling, the title of this post is not just a historical metaphor, but literally Joe Biden relevant. What counts as material support to communists now? Waving at a friend who's marching in a May Day parade?

Jack Crow said...

mds,

Persuading "terrorists" not to take up arms gets covered, as me reads it, so long as persuading involves any interaction with "terrorists" at all.

AlanSmithee said...

Not a damn one of us whimbling on the intertubewebs is going to jack fucking shit about this, or anything else.

O contrail, Mister Crow! The intarweb punditry will indeed do something. They will mock and sneer at the people who are trying to do something about it.

sahib said...

can someone explain the origin of IOZ's flavor-of-the-month phrase "literally Joe Biden?"

Charles F. Oxtrot said...

Dunkie Kennedy tried to get students at Haaaahvaaaahd Jurist Academy to grasp the notion of legal realism, and it failed.

RESULT: JP Stevens, Thurgood Marshall, and Big-Ears Brennan are lauded as "progressive" Justices in the Pwog Panoply.

Still.

Charles F. Oxtrot said...

Comment Part 2:

IOZ's primary entry here + Raimondo's "Kill the Kill Switch" = where we're heading.

Who are the brain police, anyway?

Inkberrow said...

Pliggett Darcy---

Okay, I realize that working labels are passe and insensitive. Would you say that the vast bulk of host and commenters here are left or right of center? If even those signifiers are unpalatable, I guess I've joined a cult or something.


mds---

"Two wrongs don't make a right" applies even to the divine IOZ. As to your shuck & jive, are you saying our host and his ideological fellow travelers here are not ardent champions of Roe remaining good law? Meanwhile, if you're actually under the impression you can tilt with me on the "Living Constitution", I'll echo another great American---"Bring It On".

Jack Crow said...

Alan,

Who's doing what, where and how?

All I see from my vantage (yah, yah - it's New England, whaddaweeno uphearz way?) are people (1) yammering about doing stuff, (2) people yammering at the yammerers, (3) other folks yammering and typing about the words that two arbitrary yammer sides happen to use (4) the State growing larger, by orders of magnitude while (5) idiots with puppets gather in free speech zones to pose for the police camera men as (6) progressives bitch about power and vote for Democrats anyway.

Maybe my standards are too high, or I've just run out of patience, thinking on the society which will grind my kids up into bits and pieces of consumption and punishment.

But, what's actually being done?

Respect,

Jack

Anonymous said...

Hey....did the IRA make the list?

How about the NLA and NCRI?

kelley b. said...

...what's actually being done?

Obviously, material aid and support to terra.

We ust-jay ont-day alk-tay about it because of the SA-Nay.

ran said...

how about the CIA or US military anon?

if you pay US federal taxes you are already materially supporting the world's foremost perpetrator and sponsor of state terror.

mds said...

"Two wrongs don't make a right" applies even to the divine IOZ.

And your parents. Zing!

But no, no jousting. There's a usual script for these things; the Federalist Papers get quoted, or ignored by "originalists" as needed, and it all just turns into an embarrassing dance of fetishism over mouldering documents written by flawed-but-clever white boys who are long dead. John Marshall, the common-law precepts of Blackstone, yada-yada-yada. And does it really matter which version of the Constitution gets virtually ignored by the powerful? Despite the fun to be sometimes had from a rhubarb, not all that much to me, and obviously not very much to you, when your tribe is the one in power. So let's just take your spirited defense of Zombie Constitution as read, okay?

TGGP said...

I haven't yet read the decision itself (I still haven't gotten to the Northwest Austin Municipal District case!), but the result strikes me as to terrible I'm actually surprised.

TGGP said...

Eugene Volokh provides some more nuance to the decision, but I still don't see what's so important about whether the speech is "coordinated". The analogy to campaign financing doesn't hold: campaigners are public employees (or at least prospective ones) and elections are part of the government's hiring process. It's just as logical for a corporation to have bylaws over shareholder participation and selection of proxies or boardmembers (I also think they could resolve insider-trading issues by themselves). Coordination with a terrorist group in a legal action (as was apparently the case with the PKK here) seems another matter entirely.

TGGP said...

Apparently you're only in the cross-hairs if you impart "specialized knowledge". I guess we're in the clear!

StonedTerrorist said...

If there is a rational court, i can prove that IDF is as much a terrorist organization as Hamas is. The US Govt. gives material, emotional and other kinds of support to this terrorist organization. Simply, it follows that paying taxes is wrong according to these new developments in the "justice" system. Hooray....


Is there a lawyer in the room?!!!!

Inkberrow said...

mds---

You've done your reading, alright, but only in part. Concerning conservative and so-called "originalist" thought, you've for whatever reason decided to rely on comic books, or a dirty mag some guy in a trenchcoat passed you in the street. By no means need you agree with them, but to dismiss e.g. Scalia and Bork so glibly is what a rhubarb would do.

mds said...

"but to dismiss e.g. Scalia and Bork so glibly is what a rhubarb would do."

So ... in order to truly embrace originalism and/or strict constructionism, I should stop directly considering the legal theories of the founders, and focus on two modern-day guys who are on record as hating the text of the Ninth Amendment? Okay, I guess if we somehow needed any more proof that this is the vacuous definition of "originalism" embraced by complete dumbshits, it has arrived surrounded by a rainbow aura. Please let it be that you're just an elaborate collection of Perl scripts, and this hog-hootin' ignorance that passes for cognition is merely what you do when they push Chinese writing under the door.

Inkberrow said...

mds---

Shooting fish in the barrel is boring, so I'll be brief. You're either a simpleton or a jaded partisan. You can't see the substantive forest for the procedural trees. Selective "parsecution"?

You cite the Ninth as if definitive of some "procedural" deficiency in Scalia you think you manage to meaningfully deplore, while apparently clueless that its neighbor, the Tenth, was quite some time ago turned into and remains today a convenient dead letter for proggie statists like yourself. With the First, mod-progs want the Establishment Clause out on the town every night, but want Free Exercise Clause to be considerably less sociable. The Fourth confers Bedrock Individual Rights, sob sob, but the Second? Not so much......

Charles F. Oxtrot said...

Inkberrow's comments sure do have a lot of letters, spaces, and punctuation marks.

mds said...

"for proggie statists like yourself."

Okay, we apparently need to add "statists" to the words Inky doesn't actually understand, since he's using it as a pejorative term for critics of Bork and Scalia in the comment thread about yet another decision where Scalia sided with abusive state power. Is this actual irony, or still the Alanis kind? Still, the notion that only "proggie statists" could mock results-oriented jurisprudence ostentatiously pretending that it isn't anything of the sort ... that was funny. Kinda like a fortune cookie fortune saying "That lump is cancer" is funny.

StonedTerrorist said...

Everybody knows the deal is rotten
Old Black Joe's still pickin' cotton

so many words, so many, sooo many. unrequired pretentious words that only serve to make more slaves. lets just all shut up. all we have in this world are dispensaries of law, not courts of justice.
we need justice man. lets just shut up and throw away our voluminous law books and be just for a change.

Inkberrow said...

mds---

As you well know, I intended "statist" as one favoring strong centralized authority. Folks on the left or right can be statist in orientation, whether that fact jives with your own outfit and accessories or not. Meanwhile, if that's the best substantive refutation of my post you have, I'd better revisit "simpleton".....

Anonymous said...

Obvious troll is obvious.

TGGP said...

SHIT! I just wrote up a massive comment, "my request could not be completed" and now it's gone. Damn you, internet. Trying to subtly hint I should spend some time away from the computer. Fuck that shit, you series of tubes!

TGGP said...

Laws tend to define terrorist groups so as to exclude the official armed forces of states. The statehood of Gaza is questionable (which may actually make the blockade a violation of international law). The IDF also wears uniforms, which has bearing on the Geneva Conventions.

I used to be in the Bork camp in regarding the Ninth Amendment as an "ink-blot". It says what isn't, but then gives no basis for saying what is. I changed my mind after reading Kurt Lash's A Textual-Historical Theory of the Ninth Amendment. I pick'n'choose Hamburger over him when it comes to privileges or immunities though. I think Lash's take on the establishment clause is particularly implausible considering the attempted "Blaine amendment" of the time. Lash's interpretation of the 9th is "statist" in a sense, but not Inky's.

Originalism is not essentially a conservative doctrine, and has been taken up by some progressives. Of course they think conservative originalists are mistaken in their interpretations.

The best outline I've read of different ways of interpreting the constitution (and how the document itself recommends it be interpreted) is Christopher Green's 'This Constitution': Constitutional Indexicals as a Basis for Textualist Semi-Originalism. Green argues that we should follow the original meaning of the text, but that the original intent or expected application of its framers is not necessarily controlling. They could be mistaken about a matter of fact (as in fact they were regarding a census of state populations), and that mistake is not enshrined in law. In my view though, one should interpret with the presumption that the ratifiers were not mistaken. It requires a serious argument for why one should believe that they understood what they ratified less well than we many decades later. The constitutionality of a law certainly shouldn't change because some judges detect an "emerging national conscensus" (in practice usually without resorting to any data outside their own chambers). Congress violates the constitution at the moment it passes the law.

Statism is a different thing from conservatism vs progressivism, without presumably the least statist spectrum being anarchism. Lysander Spooner was an anarchist pal of Benjamin Tucker in the 19th century and promoted a version of original intent in his "Unconstitutionality of Slavery". He later wrote "Constitution of No Authority", which would seem to make that irrelevant. Randy Barnett, who used to call himself an anarchist (I'm not sure if he still does after endorsing the Iraq war and, unlike Spooner, the Civil War) still holds out a torch for Spooner and agrees that we should interpret with a "presumption of liberty". That sounds like a nice policy outcome but I can't say I agree that the constition itself dictates that presumption. Rather, like the later Spooner, I think we should admit the constitution is flawed. We shouldn't have ditched the Articles of Confederation, but as long as we're pretending to live under the constition I prefer the meta-ideological norm of the rule of law.

Charles F. Oxtrot said...

The Articles of Confederation more closely tracked the Declaration of Independence.

The Constitution more closely tracked the organic laws of England.

Ironic, that the Declaration purportedly was about Independence from England's King, no?

The Constitution MUST BE interpreted because it is vaguely written. It is not a code nor a set of statutory prohibitions, but rather is a set of guidelines.

The problem is, the guidelines were plutocratic and quasi-monarchic in tenor.

Which brings us back to the Declaration of Independence and the Articles of Confederation.

What the Federalists wanted was to duplicate the powers of the KofE, but arrogated to themselves.

Most often when a modern dimwit talks about "the Founding Fathers," the dimwit is talking about the Federalists, and not referring to the Declaration of Independence or the Articles of Confederation.

Again ironic, given that the Constitution never could have been written or proposed, let alone ratified, without the Declaration of Independence.

TGGP said...

The Constitution must be interpreted because everything read must be interpreted in order to impart any meaning. And it is a code containing statutory prohibitions. See the Chris Green paper I linked earlier on why it is not a set of moral principles, common law concepts or non-binding recommendations. If you like the argument for why the Constitution is a legal document in diavlog form, see here.

It's not terribly ironic since the colonists' complaint was that their traditional English liberties (of which they had an inflated uppity view due to being so far away and lightly governed) were being trampled.

I like bashing the Federalists as much as the next-antifederalist but I think there were significant differences between, say, Madison and Hamilton. Which is why the former could so easily ditch the federalists and refuse to let Marbury take office.

I don't have a problem with the timocratic aspect of the constitutional order (the Magna Carta was so as well). History has simply shown that creating a powerful central government and then tacking on some restrictions ends in said restrictions being ignored. Better never to have created the beast in the first place.

Charles F. Oxtrot said...

TGGP, the Constitution is not a code containing statutory prohibitions.

I don't care to whom you cite. You're just wrong. Organic legal frameworks are not codes. Clearly you're either not a lawyer, or a very poorly informed one.

I don't have time to play with shadetree dumbfucks who think they're smart jurisprudential scholars. If you knew what the fuck you were on about, TGGP, you wouldn't need to cite Chris Green.

Who the fuck is Chris Green anyway, and why should anyone care what he thinks?

Jesus fucking christ, you're as bad as Inkberrow. Lots of letters, spaces and punctuation in your posts, but very little content.

Fucktard.

And no, I do NOT think my ad hominem dismissals constitute solid rhetorical grounding. They just reflect my frustration with intellectual poseurs and dilettantes.

Inkberrow said...

Charles F.---

Your bits are excellent examples of certain styles of fallacious or specious debate. The Argument From Authority, e.g., and certainly Argument By Vehemence. Do you work with your hands a lot?