- Here are two videos with about twenty minutes of debate about whether this association should hire our law firm. My favorite part happens about three minutes, twenty seconds into the second video when someone accuse my firm of being the illumati! (or actually I think they accuse use of being members of CAI (a trade organization--Community Association Institute--which we are) and CAI is like the illuminate, so we are too, by association). It seems like their main complaint is that our firm sues homeowners. I know people don't like it when the association sues them or their neighbors, but how else are associations supposed to collect assessments or enforce their rights?
- Lots of interesting stuff has been written about McDonald v. Chicago, because oral arguments happened this week. The case deals with whether the newly discovered/affirmed Second Amendment right to bear arms for self-defense is binding on the states. Here's my original take on the problem that incorporation poses for originalists. The short of this dilemma is: what an originalist does when almost all the other rights in the Bill of Rights have been "incorporate" against the states, but in order to incorporate the Second Amendment, you'll have to use the doctrine of substantive due process, which many originalist consider to be specious, judicially-created doctrine. I recently realized that I don't think the dilemma is going to be much of a dilemma because there is an out for Thomas. (Scalia has already accepted incorporation through "substantive due process" basically a concession to precedent, so he's just going to go with that.) Thomas will have the opportunity to use the privileges and immunities argument, overruling 140 years of case law, true, but sticking to originalism to incorporate the Second Amendment. Here's an explanation of the privileges and immunities. Here's an op-ed about privileges and immunities clause and originalism.
- Sorry number 2 didn't make any sense! I tried!
- Originalism is a harsh mistress. Or is it just the constitution? It has these provisions like "privileges and immunities," "due process of law" or even "congress shall make no law . . . abridging the freedom of speech." So what do you do to flesh out these provisions? One answer is you leave it to congress to figure out the parameters of these rights. But then the constitution is a limit on congressional power. So you have to flesh out the provisions, otherwise what's the point of having a constitution if a simple majority can expand, diminish or eliminate the right? An originalist can then look to history; to the original understanding. But then historians don't agree, or there isn't much history. In those cases, you're basically just left to your best judgment in some instances it seems.
- Take the Heller opinion, for example, which held that individuals have a right to bear arms for self-defense. The language of the amendment says, "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." That sounds like it's not an individual right, but a right of military personnel. Otherwise the "militia" language is gratuitous. Historians don't agree on the original understanding, with some saying its and individual right and others a collective right for military personnel. I don't know all the history, but the argument that works best for me is not historical: If this is a "collective right", what would be the point? It's a right of a group of people that the government controls? That's means the government can deny the right completely. And isn't the Bill of Rights supposed to contain restrictions on the government? If this was a collective right, then the government is not restricted. For this reason, I side with the Heller majority. Is that textualism, purposivism, or just a policy argument?
- Orin Kerr argues here that you should be careful cross-examining a judge. True enough Although I have to quibble with one argument. Judge Posner and Easterbrook are too very famous conservative-leaning academic judges on the Seventh Circuit, and they voted against incorporation of the second amendment, with Judge Bauer. Then some crank threatened them, saying they should be shot, and putting their job information and pictures on the internet. Here's the defense attorney crossing them:
"Orozco[the defense attorney] asked the judge, “If it’s overturned, doesn’t that mean Hal Turner is correct?” At that point, laughter was heard through the courtroom.
Judge Easterbrook said no, for two reasons. First, the central issue — whether the Second Amendment applies to the states — is one for the Supreme Court, the judge said. Therefore, a reversal would in fact confirm that the case had been rightly decided."
This last sentence makes no sense to me. How does getting overturned confirm that the case was rightly decided? I can't see how being overturned can ever confirm that you were right. I'm guessing that, because this isn't a direct quote, the journalist just screwed up.
7. Who are the 5 people that most annoy you one TV (Or, just in showbiz if TV is too narrow). And not for political reasons, because that's too easy. Here's my list.
- Tyra Banks
- Billy Bush
- Andy Rooney
- Al Roker
- The fourth Judge on American Idol (because three is plenty)
8 comments:
Overeating is probably against the word of wisdom. Moderation is a specifically vague word.
That's a fair point. The word of wisdom only says to eat meat sparingly, but it has been interpreted basically as requiring moderation in all things health related which are not specifically prohibited.
Still, it must be one of the mildest of sins, because you'll never hear anyone speak out against overeating in church or general conference (at least that I can remember), and there are no consequences for violating this commandment, other than those that flow naturally from being overweight. Many church leaders are also overweight, including general authorities.
Even the prohibitions on multiple piercings, tattoos, wearing sandals to church, wearing a white shirt and watching Rated-R movies, are more directly addressed and condemned in church.
1. Are there lots of videos of HOA meetings posted online..could spring up a whole new branch of reality TV.
My experience with HOAs and lawyers hasn't been too encouraging. I know you're familiar with the experience, but I'll summarize: My real estate listing said "no HOA." My first communication from the HOA was from their lawyer trying to collect a couple hundred dollars of a previous owner's delinquent dues (something my title company missed). My HOA management firm tells me they'll take care of it. I receive two more delinquent notices, the last of which is over $1,000.
I agree that HOAs need a way to enforce payment of dues, but is this the best way? Maybe it's just a failing on the part of the HOA to not communicate better with the firm they hire. I didn't have to pay, so does the HOA eat those costs?
Another thing with my HOA, their actually an LMA with no enforceable bylaws. They have a few plants around the entrance to the neighborhood that they keep up, but over half the dues go to paying the management company. The management lady comes to meetings to offer pseudo-legal advice I guess. She contacts the law firm, drafts letters about LMA meetings, and I'm not sure what else. Should we pay theses people a majority of our funds?
I think I might have found in my LMA an entity even less efficient than public schools.
2. I was going to comment on your original post on this, but never got around to it. From what I gather, the dilemma is whether to follow a policy that you disagree with (and that others that you disagree with have set a precedent in following) to lead to a favorable end. I guess you have to weight the importance of the principle that you're trying to stand for against the consequences of standing for it.
4. I wonder about originalism in that there always has to be a degree of extrapolation to address new situations. I get that sticking to the intentions of the founding fathers tries to make constitutional interpretation unbiased, but what if in light of the happenings of the last couple hundred years it would be wiser for us to follow a different principle as a nation.
Take the Second Amendment. What if a new historical document is found showing that it really was intended to only apply to militia, but evidence shows that banning handguns doesn't decrease gun violence (I'm not familiar with the data, this is just part of my supposition). Wouldn't we be better giving the general population the right to bear arms. But I guess thats what the amendment process is for.
8. Who is attacking obesity as being morally wrong? Even the Biggest Loser appear to me to come from the angle that morbid obesity is going to kill you, so overcoming it should be top priority in your life.
I can make fun of a student who smokes for being stupid and reckless with his health without much chance of a consequence, but if I make fun of a kid for being fat..I don't think it would fly.
1. Brett, I bet there are a lot of videos if you go to YouTube. I thought those videos were pretty funny, but I feared they were only interesting if you know our firm.
Remember, HOA Board members are basically doing a job for free, and they usually have other full-time jobs, so they frequently screw up. They're not professionals. Also, if they do a really bad job, you can run for the board or recall the current board. (I hear there's going to be a recall vote on the board in the video).
It's probably easier to win a seat on your HOA board than on your school board, so if you don't like the way your association is run, you can probably easily change it.
I should say, before we sue anyone we send a couple demand letters, assuming we know where to send them. But ultimately you only have two options 1. ask, or 2. force. I guess there's arbitration, and mediation, but those just stretch things out and are generally just more expensive versions of ask or force.
2. Originalism comes into conflict with other principles of law like stare decisis (following precedent), and judges just have to do their best to reconcile the principles. Scalia follows precedent in some instances, like on the incorporation cases, even though he thinks those cases are wrongly decided, but Thomas is generally less deferential to precedent.
Here you could argue originalism conflicts with the principle of consistency in the law, but that's not a commonly extolled principle, and it looks a lot like a policy judgment. More cynically, you could just say an originalist incorporating the Second Amendment is abandoning his principles to get the policy he wants. Originalism is supposed to constrain judges from making policy decision, so the "consequences of the decision" really shouldn't come into play in the decision making process. But I think both judges have an out: Scalia's out is stare decisis, and Thomas' out is privileges and immunity clause, so neither will have to really confront the dilemma I imagined.
4. You are absolutely right that what you call "extrapolation" is one of the hardest parts about originalism.
I would put it another way. You have to derive neutral principles from the constitution and apply those principles to newly arising situations. If the principles are too broad, like "privacy" or "justice" then judges have completely unfettered discretion. But the principles or rules cannot be so specific as to be tethered to a specific understanding. Like "unreasonable searches" only means physical searches, because that's what could be done in 1786, but doesn't apply to searches using technology. I don't know the answer to how these principles should be derived.
Your post also gets at a definition of originalism that isn't too predominate any more. "Original intent" is what I think some scholars, like Bork and Meese thought originalism should mean back in the 80s. Nowadays, though, Scalia/Thomas originalism means to look at the original public meaning--that is the meaning that was commonly understood at the time the constitution was adopted. A letter form one founder to another would not be relevant to determine what what the public understood the provisions to mean. Only historical documents, like public debates, papers, etc. that reflect a public consensus is relevant. This is the main schism between Scalia's and Steven's opinions in the Heller decision (and the difference is discussed extensively in the video Volokh/Rakove video.
Your right, the amendment process should take care of bad policy in the constitution (although living-constitution advocates disagree). Also, the constitution I believe in, without broad "privacy" rights and broad "substantive due process" rights, means that most of the decision are left to the legislature. That means most policy decision can be flexibly decided and changed through the legislative process.
8. It seems like people are trying to make me feel bad for eating fast food at work. Then there's this whole "slow food" movement about the evils of processed foods. There are the people who want to tax McDonalds, tax soda, require nutritional content to be published on food, want to ban certain kinds of fats, zone out fast food, etc. Leno is always making fat American jokes.
Although tattoos and r-rated movies are specifically addressed in church there is no temple recommend question addressing any of the "lesser" commandments, if I got a tattoo on my neck tomorrow, I could still pass the sacrament but if I get drunk, then passing would be a double sin. "eat meat sparingly" is never talked about while the WOW is discussed. I don't know why that is and it actually really bothers me. One theory I have is that the Seventh Day Adventists have the market cornered on extreme dieting mixed with religion, and we don't need any comparisons to the 7ths.
I'm ok with people wanting to promote healthy living. I occasionally give my students a hard time for eating a lunch of candy and soda. What bothers me is when people promote wrongheaded ideas of healthy eating (organic, colon cleansing, enzyme replacing, etc). My wife is reading this China Study book that convinced a well educated friend of hers to give up all meat and dairy in her house.
I don't like legislating healthy living, but I do appreciate food labeling.
Gluttony is not a grave sin, but a steady diet of fast food isn't the wisest choice.
Danny, that's true you can still get a temple recommend if you engage in lesser sins I mentioned. I guess the temple-recommend test is the ultimate test for whether a sin is serious.
Still, there are certainly behaviors that are discourage frequently in church that will not make you lose your temple recommend, like those I mentioned. Being overweight is rarely if ever talked about, which leads me to believe that it isn't very important, even in comparison to these other, mild sins.
Brett, there's something more to this movement than just eating healthy. There's a kind of moral vigor that these people have that bugs me. I think that George Will's article explains it pretty well. Not controlling your physical appetite has replaced the sin of not controlling your sexual appetite. Fast food is also denounced as a kind of "poison." Bad foods contain toxins, etc. There's a sort of religious fervor that I don't think is justified, but I could be wrong.
There's also a sort of snobbery about this movement, because many of these people seems willing to eat unhealthy expensive food, just not unhealthy cheap food. But that's more my anecdotal experience.
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