Sweet Sixteen and the Elite Eight

This weekend the NCAA women are in the Sweet Sixteen round. Today’s games:

University of Kentucky vs Baylor (12:00 noon EDT)(all games are on ESPN) UPDATE: Baylor 90 – 72

Oklahoma State vs Notre Dame (2:00 pm EDT) Go Irish! UPDATE: Notre Dame 89 – 72 Yay, Mrs NoVA!

BYU vs UConn (4:30 pm EDT) Go Huskies! (In the spirit of rooting for anybody who’s playing against BYU) UPDATE: UConn 70 – 51

DePaul vs Texas A&M (6:30 pm EDT) UPDATE: Texas A&M 84 – 65

Sunday’s games:

University of Maryland vs Tennessee (12:00 noon EDT) Go Terps! UPDATE: Maryland 73 – 62

LSU vs Louisville (2:20 pm EDT) UPDATE: Louisville 73 – 47

PSU vs Stanford (4:30 pm EDT) UPDATE: Stanford 82 – 57

UNC vs South Carolina (6:30 pm EDT) UPDATE: UNC 65 – 58


And of course, the men’s tournament is in the Elite Eight round. The games the last two days–and especially last night–have been some great basketball! Today’s games :

Dayton vs Florida (6:09 pm EDT, TBS)(Why in the world the “09”? Why not 6:10?) UPDATE: Florida 62 – 52

Wisconsin vs Arizona (8:49 pm EDT, TBS). For McWing’s sake, Go ‘Cats! But I have to admit, my heart is with the Badgers. UPDATE: Wisconsin 64 – 63 in overtime. The Badgers were trying to kill me tonight!

Tomorrow:

UConn vs MSU (2:20 pm EDT, CBS). Do you even have to ask? GO STATE!! UPDATE: UConn 60 – 54

University of Kentucky vs UM (5:05 pm EDT, CBS). Let’s Go Blue! UPDATE: UK 75 – 72

Dare I hope that 75% of the Final Four be BiG teams?

Sigh. There is no joy in Mudville tonight.

63 Responses

  1. I now return you to your regularly scheduled political discussion.

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    • jnc:

      Worth a read:

      “Forces of Divergence
      Is surging inequality endemic to capitalism?”

      Funny, earlier in the week I came to the office to find on my desk a copy of Piketty’s book and a note from one my colleagues, a big lefty. Unfortunately it wasn’t a gift, but just a notice that the book had been published in English and that I should read it, so I am waiting for him to finish it to get his copy.

      Since I haven’t read it yet, I can’t comment on the book itself, but I still question the apparently unquestionable premise that seems to pervade all of these discussions, and that premise is that income inequality is necessarily something that is bad and must be altered, rather than simply a feature of the world that must be accepted. Yes, political action can effect income inequality, but that doesn’t establish the “ought”. Should political action aimed at altering the otherwise natural state of income inequality be undertaken, and if so, why? No one ever seems to address this question, and based on your link I’m guessing that Pikkety doesn’t either. It seems to simply be an unquestioned article of faith, especially on the left, that income inequality is an indication that something is “broken” and must therefore be “fixed” via politics. I dispute that premise.

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    • I have Sparty winning the Natty in 3 of my 5 brackets.

      —————
      Income disparity and wealth inequality are the natural result of any and every system of economics and trade; I think we all agree here, even our most liberal members. Did the inequality result from theft, or monopoly, either private or governmental, or from a monarch or dictator’s imposition of class? Did it result from rent seeking? Did it result from government subsidization of an industry? These are questions worth asking.

      Not worth our time is the notion that the state can impose income parity and wealth equality, because the power to do so must include the power to destroy innovation and the power to play favorites.

      Despite that broad view I am comfortable that American states early decided on the positive value of public education, and on the whole their views were borne out by history. It remains an area where the ROI works for the individual and the society, IMO. RWR’s EITC is obviously redistributionist, but it is also not inconsistent with Smithian capitalism, and supposedly it has worked, but I don’t know how that was demonstrated. I think the GI Bill was an enormous success. So I am open to listening to various ideas, even when the proponent is motivated by economic determinism, whether of the Marxist or the Miesian variety.

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      • Back in ’92, I voted for Perot, but I thought NAFTA was going to work out for us. I don’t know whether it did, really. I am a theoretical “free trader”. I am not sure it is always a GOOD THING, for reasons that have to do with national security and not wanting to prop up petty oligarchs overseas more than from worry about trade deficits/job losses. But I could see how some liberals, motivated by hand wringing over income disparity, could propose trade policies that I could live with. In fact, AFL-CIO’s brief on why we should reject MFN treatment for China during the GWB Admin did make sense to me. I know what their motive was, but their arguments stood on their own merits.

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  2. How much of the “concern” over income inequality is covetousness?

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    • McWing:

      How much of the “concern” over income inequality is covetousness?

      For the average progressive voter I would guess it approaches 100%.

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  3. I’m not an egalitarian so the fact that capitalism produces inequality doesn’t matter to me.

    “It seems to simply be an unquestioned article of faith, especially on the left, that income inequality is an indication that something is “broken” and must therefore be “fixed” via politics.”

    No, that’s not it. Piketty’s book argues that increasing inequality is the natural result of a capitalist system. He makes the argument that the “great convergence” of income compression from Post WW II to the early 1970’s isn’t the natural state of affairs but rather an aberration due to the war, etc. It’s a fully fleshed out Marxist critique.

    I assume you saw the National Review piece on it. I believe it was linked here earlier.

    http://www.nationalreview.com/article/374009/new-marxism-james-pethokoukis

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    • jnc:

      Piketty’s book argues that increasing inequality is the natural result of a capitalist system.

      Be that as it may, I still think what I said about the left is true. And the fact that Piketty characterizes this increasing inequality as “terrifying” (as quoted by your link) suggests to me it is probably true of him, too.

      I assume you saw the National Review piece on it.

      I didn’t, but I will check it out.

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  4. Michi, book review of the Jim Grant book.

    This seems key:

    “When Gant succeeded in one village, Petraeus asked him how to connect such village militias to the serpentine government in Kabul. Gant responded, “It cannot be done.” Our best and brightest generals were pursuing an impossible strategy, having taken the wrong lesson from Iraq. ”

    http://www.washingtonpost.com/opinions/american-spartan–by-ann-scott-tyson-about-maj-jim-gants-mission-in-afghanistan/2014/03/28/4440187e-aac8-11e3-adbc-888c8010c799_story.html

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  5. Thanks for the link, jnc!

    Mark: I’m trying to to jinx them, but. . .

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  6. “I am a theoretical “free trader”. I am not sure it is always a GOOD THING, for reasons that have to do with national security and not wanting to prop up petty oligarchs overseas more than from worry about trade deficits/job losses. ”

    This is pretty much me. I support free trade, not being the chump at the poker table.

    I always liked Steve Pearsteins’s argument for a trade policy of ‘reciprocity’ with China for that reason.

    http://www.washingtonpost.com/wp-dyn/content/article/2011/01/18/AR2011011806900.html

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  7. With the need to borrow trillions in a never ending way, unless you want to completely monetize the debt or quit borrowing, we’re gonna bend over and do what China says.

    Anybody disagree with that?

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  8. When liberals cite the increase in inequality, always note the time periods they start with (Since 1980… Since 1987). These dates are not random, they coincide with major bottoms in the stock market. In fact, 1980 not only ushered in Ronald Reagan, but also ushered in the mother of all stock market and bond market rallies. The 10 year went from yielding in the high teens to almost nothing. The S&P 500 went from 135 to 1800. We all remember when the stock market crashed in 1987.

    How much of the growth in inequality was due to increases in asset prices? And is that necessarily a bad thing? We could have more equality if we crash the stock market, but I don’t think that is a satisfying answer for anyone (maybe Alethia).

    How much of it was due to the Fed stepping in whenever the financial markets have a hiccup:

    Crash of 1987
    Asian Tiger crisis
    Long Term Capital Management
    Y2K (hell, there was no problem in the markets, but Elmer wanted to make sure so he flooded the system with money anyway).
    Post 9/11 (which began the beginning of the real estate bubble)
    And six years after the financial crisis, the Fed is still using almost full emergency tactics.

    It is interesting to look at the different real estate price points – The ultra jumbo side is going great (in fact the average house has added 200 square feet from 2008 to today). Very few builders have interest in building starter homes. No demand. Almost all of the price appreciation is in the high end.

    The rich have gotten an incredible ride courtesy of the Fed.

    That said, the left wing answers to inequality (minimum wage, government subsidies for health care) probably cause as many problems as they solve. All the left-wing academics like Krugman can cite some (probably bullshit) study that says raising the minimum wage doesn’t hurt jobs. We have a bunch of able-bodies people that would like to have jobs. How many of them would prefer a shitty job over no job? What do you do about the people who’s labor simply isn’t worth (in terms of marginal product of labor) a living wage? Make them wards of the state? How much will that cost?

    The thing is, Europe is probably heading away from that model as it gets too expensive (cue the GERMANY!!!! posts at PL). Certainly left-wing labor polices are wonderful if you are older and protected. But if you are young, they aren’t so great. And even the left-wing pinnacle of economic success, Germany, only looks good in comparison to where the US is right now, post-bubble. Aside from post the real estate bubble, we have kicked their ass economically for decades. Anyone want to be France?

    My long-winded point is that I think asset prices and a Fed that has pulled out all the stops to maintain them is a big cause of inequality. But I can’t imagine Paul Krugman advising Janet Yellen to start hiking interest rates.

    So, my cynical side says that Democrats will probably push a counterproductive measure like a living wage, and then use the more cowbell excuse when it fails to give them the results they want. Nobody will address the Fed.

    My fear is that we find out asset markets cannot handle increased interest rates. Then what? Next financial crisis we will be fucked cause the Fed is out of bullets.

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  9. If you want to read the latest in out-of-control, result-driven, arrogant, lawless judicial activism, here is Judge Friedman’s atrocity from Michigan.

    http://www.equalitymi.org/files/March2014-DeBoer-ruling.pdf

    Keep in mind that he like the Oregon judge purports to be applying rational basis analysis, under which any any speculative reason that a rational person could conceivably believe is good enough. One of the tell-tale signs that it isn’t what he is doing at all is his argument that the state’s reasoning can’t be accepted because it would apply to other situations not covered–a criteria that laws never have to satisfy under a rational basis test.

    Law ceased having anything to do with what judges do in this area years ago. It is all a charade.

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  10. I just saw another study or analysis the other day giving the lie to the overwrought argument that inequality is abnormally increasing. Can’t remember where.

    The concern is 100% covetousness.

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  11. Wonderful passage from Judge Friedman’s handiwork.

    In delivering their opening and closing remarks, plaintiffs’ attorneys contended that the voters who approved the MMA were motivated by animus towards lesbian, gay, bisexual and transgender individuals. Since the Court is unable discern the intentions of each individual voter who cast their ballot in favor of the measure, it is cannot ascribe such motivations to the approximately 2.7 million voters who approved the measure. Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law. The same Constitution that protects the free exercise of one’s faith in deciding whether to solemnize certain marriages rather than others, is
    the same Constitution that prevents the state from either mandating adherence to an established religion, U.S. Const. amend I, or “enforcing private moral or religious beliefs without an accompanying secular purpose.” Perry, 704 F. Supp. 2d at 930-931 (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)). As a result, tradition and morality are not rational bases for the MMA.

    Note how the logic shifts from the claim that voters voted based on animus (no evidence) to the assertion by the court that religion (presumed reason for some voters), tradition, and morality can’t provide rational reasons. Admitting he has no evidence for why voters voted for the MMA, he invalidates on the basis that he assumes they voted based on religion.

    He’s an intellectual featherweight.

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    • QB – if the Ds’ response to the Ps’ assertion of voter animus was “religion” then the Judge’s remarks were appropriate in that they were not based on his assumption, but in response to the assertions of counsel.

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      • His remarks could be appropriate in the limited sense that they are not impertinent, if that were the defendants’ sole argument, which surely was not the case. But they are in any event devoid of logic leading to his conclusion. Plaintiffs argued that the law was based on animus. It is an area the courts have no business wading into, but the plaintiffs had no evidence and plainly could never prove such a charge, since it is patently untrue.

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  12. since it is patently untrue

    I’m not a lawyer, what are you basing this statement on? I’m just wondering and trying to follow why you’re taking such umbrage with this ruling.

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    • ‘Goose, it would not matter if it were patently untrue, because it simply cannot be proved under the rules of evidence and the Judge was correct to dismiss the assertion. The Plaintiffs were trying to use language from civil rights cases, where animus can be proven by evidence and is relevant, to color the proceeding and while there is no harm in trying it was such a cheap shot that the Judge had to say the obvious about it. No voters were called to the stand; no evidence of “malicious” voting was introduced, nor could it be, as a practical matter.

      But QB is arguing that something is patently untrue from no basis in evidence either. And while I do not know what was argued here, I assume from the arguments offered in cases I did watch that the Defendants relied heavily on religion and tradition.

      Here is the real problem with the Court’s rationale, stripped of QB’s emotional response. It assumes its own conclusion. Once the Judge decided in his head that equal protection under the 14th A. meant that SSM could not be denied then there was no argument from religion, or tradition, or history that could sway him.

      The strongest arguments for federal courts staying out of this are that no one had ever thought SSM was an equal rights issue from 1866 until 2012, Congress, which has the power to implement the 14th A never addressed this, and the Constitution is devoid of mention of “marriage”, which is generally a state issue.

      In other words, this is legislation from the bench, and I think the parallel drawn with miscegenation is pitifully weak.

      Personally I would vote in a legislature for gay marriage, but were I on a Court I would say “take this to the legislature”.

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      • Mark:

        The strongest arguments for federal courts staying out of this are that no one had ever thought SSM was an equal rights issue from 1866 until 2012, Congress, which has the power to implement the 14th A never addressed this…

        Actually didn’t it do just that with DOMA, concluding that a refusal to recognize SSM was not unconstitutional? All the more reason for the courts to stay out of it.

        Personally I would vote in a legislature for gay marriage, but were I on a Court I would say “take this to the legislature”.

        You labor under the quaint notion that the constitution actually means something objective, and therefore a judge could conceivably disagree with a law but still find that it is constitutional. It seems to me that modern liberal jurisprudence, with its theory of a living constitution, has pretty much destroyed that notion, and with it any judicial self-restraint from legislating from the bench.

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        • Actually didn’t it do just that with DOMA,

          Yes, I almost added that Congress had rejected any 14th A argument [either equal protection or due process] by necessary implication in DOMA. I wanted to keep it short, but failed.

          The notions of judicial restraint, judicial activism, and judicial minimalism remain divorced from “conservative” and “liberal” politics. Scalia is an activist. Roberts seems to me to be a minimalist.
          Earl Warren was clearly an activist. Felix Frankfurter was a restrainist.

          QB and I had a disagreement over what judicial restraint means that is worth mentioning. I think it includes deference to precedent, and to a lesser extent, to statute. He does not. I think the scholars talk about QB’s view as “Originalism” now.

          I will try to illustrate, very roughly. Take the death penalty and the “cruel and unusual punishment” clause.

          Originalist: Any punishment considered cruel and unusual in 1791 is verboten.
          Restrainist: Any punishment we have considered to be cruel and unusual based on a body of settled medical evidence is verboten, but this cannot apply to the death penalty itself, or to imprisonment itself, or to fines, as such, because life, liberty, and property can be taken with due process of the law.
          Minimalist: We can consider the circumstances of the convict and the latest medical opinions in determining whether the death penalty should be imposed in a particular case. Thus we can decide that because teenagers have less emotional control according to neuroscience they can be held accountable for their crimes, but it would be cruel and unusual to execute them.
          Activist: The death penalty and solitary confinement and life without parole could be cruel and unusual, per se.

          I think much of what passes for Originalism is Activism because the founders thought their document was loose enough to allow for changing views of fundamental fairness as a matter of their heritage in the common law. They incorporated common law principles and words into “due process”, not statutory language. Due process and what passed for fairness had not been frozen in time by the common law but had changed slowly. I think none of the founders thought they were halting that evolution [but I would have to do a search to back that up].

          OTOH, much of Originalism is co-extensive with restraint, as is much of minimalism.

          It is very hard to know in advance if a restrainist federal judge like Richard Posner, whom I consider to be a model, would remain a restrainist on the Supremes. That is because once on the Supremes he would literally not have to follow precedent. As a practitioner, I relied on prior decisions to advise clients of probable results. Thus I had an aversion to – uh – sudden changes.

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        • Mark:

          The issue I raised was the notion of a living constitution, not activism or restraint, and especially not activism/restraint regarding precedent. (You might label as “activist” both a judge who disregards the constitution in order to achieve a politically preferred outcome, and a judge who, applying the constitution, must ignore the precedent set by the previously mentioned judge, but I don’t think there is an equivalence at all.)

          To use your capital punishment example, I would not necessarily have a problem with a judge who declared some new and heretofore unused form of punishment unconstitutional on the grounds that it is cruel and unusual. However, for a judge to declare that a form of punishment that has long been practiced and considered constitutional throughout our history has suddenly become unconstitutional on the grounds that it is cruel and unusual is, undeniably I think, imposing his own preferences and simply using the cruel and unusual clause as a thin rationalization to veil the obvious.

          I also think you would have a hard time substantiating the notion that this type of judicial activity cuts both ways, both conservative and liberal. The relentless invention by the courts of new rights, and destruction of long-standing rights, seems to me to be largely, if not exclusively, resulting in the implementation of policies preferred by liberals.

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        • Mark:

          Can you give a couple of examples of Scalia’s activism? I’m curious what you have in mind.

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        • The Voting Rights Act case:

          Analysing the most recent reauthorisation of the act in 2006, Mr Scalia explained away its lopsided support in the Senate (98-0) and House of Representatives (390-33):

          And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same….I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

          After his comment caused a minor stir in the courtroom, Mr Scalia added:

          I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution… [T]his is not the kind of a question you can leave to Congress….Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

          This is not Mr Scalia’s first impolitic outburst. But for a justice who stakes his jurisprudence on deferring to the democratically elected branches of government, it is a stunning line of reasoning. Consider, by comparison, Mr Scalia’s endorsement of Justice Benjamin Cordozo’s 1933 statement decrying judicial second-guessing of legislative acts:

          We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.

          And recall Mr Scalia’s claim in the 1990 euthanasia case Cruzan v Missouri that it is not for judges to decide when a patient’s life is “worthless”, but “it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish [to end a life] will be honored.”

          So why not let the people’s elected representatives handle the matter of racial discrimination and voting? Why, in this case, does Mr Scalia believe he should substitute his views for those of legislators? Members of Congress, after all, considered 12,000 pages worth of testimony in 2006, which showed “pervasive discrimination” in the covered districts. As Justice Elena Kagan said yesterday to Burt Rein, the attorney for the petitioner, “that’s a big, new power that you are giving us…the power now to decide whether racial discrimination has been solved. I did not think that that fell within our bailiwick.”

          For a justice who sniffs out closet activism even in his fellow conservative justices—in 2007 he criticised Chief Justice John Roberts for exercising “faux judicial restraint”—Mr Scalia apparently finds the Voting Rights Act to be a uniquely egregious specimen of legislative incompetence. While Mr Scalia has voted to overturn congressional laws from time to time, such as in City of Boerne v Flores (which got a brief mention during Wednesday’s argument), never has he couched his judicial activism in such cynical terms. We cannot trust the Congress to legislate earnestly on questions of race, Mr Scalia implied, because senators and representatives feel bound to uphold “racial entitlements” that their forebears have enacted. Political correctness rules.

          Let us posit for the sake of argument that Mr Scalia’s cynicism is on target: American senators voted unanimously to extend the law in 2006 not because they found merit in its provisions but because they feared that a “no” vote would earn them condemnation as racists. What then? Should America trust its Supreme Court to bring a more careful, measured eye to the question? The tenor of the comments from the conservative justices suggests the answer is no. Consider the simplistic suggestion from the chief justice that because “the citizens in the South are [no] more racist than citizens in the North” we can safely ignore evidence that Southern states still systematically discriminate against minorities. Consider the ease with which Mr Scalia equated the guarantee of an equal right to vote with the concept of “racial entitlement”. And consider the failure of any justice to mention efforts in many of the covered states to depress voter turnout among minority voters in 2012. It remains highly questionable whether a majority of the Supreme Court is up to the task of diagnosing America’s racial challenges.

          [From The Economist]

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        • In a case in around 1990, Inuits or Eskimos sued Alaska and Scalia found no standing under the 11thA. which clearly was not inclusive of the case and he invented some activist bullshit about the bigger picture.

          In Bush v. Gore, he said sonething like the only question here is whether we can put an end to this nonesense that makes us look like fools in the eyes of the world. Great constitutional argument, that was. Of course that decision was wrong because the Constitution and statutes would have sent the election to the House of Representatives[for P, and Senate for VP] which presumably would have elected Bush-Lieberman, so the Ds have no real political beef. But the cowardly way they avoided our “looking like fools” by avoiding the legal framework, and then announcing the case was NOT a precedent, was Mickey Mouse activism, led by Scalia.

          These are culled from memory.

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        • Mark:

          In a case in around 1990, Inuits or Eskimos sued Alaska and Scalia found no standing under the 11thA. which clearly was not inclusive of the case and he invented some activist bullshit about the bigger picture.

          Well, just what the activist bullshit was is what I am interesting in understanding.

          In Bush v. Gore, he said sonething like the only question here is whether we can put an end to this nonesense that makes us look like fools in the eyes of the world.

          I’ve just read both the Court’s per curiam ruling and Rehnquist’s concurring opinion (to which Scalia signed on) and I can’t find anything even remotely close to that.

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        • Mark:

          I found and read the oral arguments for the VRA case, in which Scalia makes his statement that was quoted by the Economist. (It is on page 46, with a reference to a previous comment made on page 16.) As I suspected, the surrounding context is relevant.

          He was responding directly to the argument made by the government that congress had considered the 1960’s era formula which limited application of the law only to certain jurisdictions to still be “congruent and proportional” to problems in those jurisdictions today. Scalia was questioning whether this was actually true. Earlier Scalia had pointed out (p 16):

          Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally because, originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these states were violating the constitution. Do you think that is true?

          The later in responding directly to Verilli’s claim he says in full (p 46):

          Well, maybe it was making that judgment, Mr. Verrilli. But that’s — that’s a problem that I have. This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress.

          The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

          I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it. That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

          Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

          It is relevant here that Scalia is talking specifically about the provision that targets only certain states. Such disparate treatment is, on its face, plainly unconstitutional. The only thing that allowed it to pass constitutional muster in the first place was the notion that it was a temporary measure necessitated by extraordinary circumstances. That being the case, if the provision has become effectively permanent and based not on the existence of extraordinary circumstances but rather on no longer existing historical circumstances, the original reasoning no longer holds and it the provision is therefore unconstitutional. Scalia seems to me to be addressing exactly this point, which I don’t think can be construed as activism.

          BTW, it is worth noting that The Economist elided the fact that the issue under discussion was the provision calling for (ordinarily unconstitutional) disparate treatment of the states, not the VRA in its entirety.

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    • Also, the Badgers won.

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  13. Also, the Badgers won.

    They certainly did! And had me chewing my fingernails off in the process.

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  14. Also, the Badgers won.

    If I have a gig, the Badgers win.

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  15. If the Democrats end up nominating Hillary Clinton and the Republicans nominate Jeb Bush ( http://tinyurl.com/WaPoJebBushLink ) 2016 could be the Libertarian’s year.

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  16. I’ll go on record here and now: if the Democrats nominate Sen. Clinton I will vote for anyone other than the Republican nominee.

    Of course, I’m in a safely blue state so that’s a meaningless protest vote, but FWIW that’s my stand.

    As far as Gov. Bush is concerned, he’s a better politician than Gov. Romney, but (1) his name is not in his favor, (2) his name is not in his favor, and (3) his name is not in his favor.

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  17. Well, from my standpoint I think our system is doomed. Though it could creep along for another 20 years before it’s collapse. My concern is that in 20 years I’ll be 67 and probably not as able as I am now to secure my family and myself in whatever new system comes about.

    The dilemma is then do I vote for those most likely to crater the system the quickest? Those agitating for open borders and an increased welfare state?

    It’s distasteful but better than trying to survive a collapse at 70 rather than 50 or 55.

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  18. Tim Carney showing a way for Rand Paul to win.

    http://m.washingtonexaminer.com/article/2546500

    I fear we’re all Skip Sailing Nipple Suckers though.

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  19. Nice run for Arizona. Finally rebuilding after the Lute Olson era.

    Godspeed Lute, I’ll always be grateful.

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  20. I didn’t get that Scalia thought the VRA was an example of legislative incompetence and I wonder how a rational person could. What he’s saying is that is is of a class that cannot be removed though it’s continued existence is detrimental.

    Effing Economist.

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  21. No, the Fugitive Slave Act should have been overturned. Just because the legislature passes a law doesn’t mean it’s Constitutional does it?

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    • Not all laws are constitutional. However:

      Article XV.
      Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
      Section 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

      It was literally impossible to rule the VRA “unconstitutional” without rewriting the Constitution from the bench.

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      • Mark:

        It was literally impossible to rule the VRA “unconstitutional” without rewriting the Constitution from the bench.

        You think that simply saying that congress has the power to enforce a provision by “appropriate” legislation necessarily means that any act claiming to be such enforcement is therefore constitutional? That doesn’t make sense to me. Surely any such enforcement must itself comport with the rest of the constitution, otherwise is becomes unconstitutional. And undoubtedly the federal government treating states disparately under the law is at the very least constitutionally questionable, all without re-writing anything. In fact, one could easily conclude that the disparate treatment called for under the VRA could itself only be found to be constitutional after some judicial re-writing of the constitution.

        As for your Economist article on Scalia, I will have to withhold judgement as to whether he was really engaging in activism. I’d need to know the context, i.e. what he was actually responding to in saying what he said.

        As an aside, whether or not it constitutes activism, what he said is almost certainly true.

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  22. I’ve just skimmed over some of the discussion. I see there have been some interesting questions and exchanges. I don’t have a lot of time, so I will try to take a swipe at a couple of things.

    The reason I said the plaintiffs’ claim that Michigan voters voted based animus is patently untrue is that I live in this society, read, talk to lots of people, and know how I and a lot of other people think about this. No matter how many times the gay rights radicals assert “hatred” and “animus” and “bigotry,” I know it isn’t, and any honest and intelligent person knows that has nothing to do with why many people vote against the lie of gay marriage. It’s because marriage is and always has been exclusively a male/female relationship, insituted based on their complementary differences and procreative capacity. Period, end of story.

    Now, it is true that one of the great judicial activists of our time, Anthony Kennedy, years ago said in his opinion in the Colorado, based of course on nothing but his own prejudice, that a Colorado amendment barring gay rights laws was based on animus. His wild assertion had no factual or legal basis whatsoever. It was just his personal opinion, which he made law. His claim was patently untrue, just as the Michigan plaintiffs’ claim was.

    I’m not sure I accept Mark’s explanation of the difference between his and my views of what judicial activism is, but my definition is essentially that activism is departing from the Constitution first and the law second, in that order of priority. I do not think it activism for the Court hold laws unconstitutional, if they are unconstitutional. I consider it activism not to do so in that situation. Nor do I think it activism to overrule precedent. On the contrary, I consider perpetuation of error to be activist. After all, the Court’s duty is to apply the Constitution and the laws. I essentially line up with Clarence Thomas on this. One of the worst instances of activism in recent decades in my view was Casey, in which the judicial imperialist plurality said that even if Roe was wrongly decided the controversy it caused was all the more reason not to overrule it. That was perhaps the most outrageous reasoning in any Court opinion in the last century, in my view.

    The courts completely lost their way on gay marriage as soon as they bought into the sophist’s game of entertaining the idea that marriage can be something other male/female. That is what marriage has always be, regardless of other variations, throughout history and society, and it has always centered around the potential for procreation, children, and family. It has always been the conjugal relationship, by definition excluding the very possibility of same-sex marriage as a contradiction in terms. Don’t take issue with my defining it that way. That is the way human society has always defined it. What conceivable basis can a judge have, therefore, to enter into a game of “proof” that marriage can’t be something else? Once we have departed from the historical, societal, universal essence of marriage, its meaning is arbitrary. No one can logically define it now. And that is why courts should have stayed out of it.

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    • qb:

      I do not think it activism for the Court hold laws unconstitutional, if they are unconstitutional. I consider it activism not to do so in that situation. Nor do I think it activism to overrule precedent. On the contrary, I consider perpetuation of error to be activist.

      I agree with this.

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  23. Scott,

    However, for a judge to declare that a form of punishment that has long been practiced and considered constitutional throughout our history has suddenly become unconstitutional on the grounds that it is cruel and unusual is, undeniably I think, imposing his own preferences and simply using the cruel and unusual clause as a thin rationalization to veil the obvious

    The ultimate example of course is capital punishment, expressly permitted in the Constitution. In Furman v. Georgia, Brennan and Marshall, the late-20th century Butch Cassidy and the Sundance Kid of judicial activism, actually wrote that the death penalty was per se unconstitutional as cruel and unusual punishment.

    I believe that virtually all liberal accusations of conservative judicial activism are a prime example of accusing the other side of what they are most guilty, and nothing more. Just like how back in the 90s a bunch of liberals decided to start activist groups attacking the MSM as conservative. You do the crime and then make the most outlandish case possible that it’s everyone else who is a criminal. Just as every cop is a criminal, and all the sinners saints ….

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    • qb:

      In Furman v. Georgia, Brennan and Marshall, the late-20th century Butch Cassidy and the Sundance Kid of judicial activism, actually wrote that the death penalty was per se unconstitutional as cruel and unusual punishment.

      It’s a joke that such jurists can be considered serious thinkers on the court. They were destroyers of, not defenders of, the constitution.

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      • I generally think Bill Maher is an idiot, but he deserves credit for this one.

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        • Either Congress thought voting rights were impaired or not and it was not for the Court to rewrite that law. Again, I agree with the notion that VRA should apply to every voting precinct as a legislative matter. The Congress, however, does not have to, by reason of the Constitution itself. The 15th supersedes state sovereignty arguments which should have no role in the Court decision.

          The language I recall Scalia spouting about “looking foolish” was in his own defense of his vote. “the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world.” From a New Yorker interview in 2005, now behind a pay wall.

          https://bulk.resource.org/courts.gov/c/US/501/501.US.775.89-1782.html is the Indian tribe suit against AK.

          I actually would have probably ruled the same way, I think, but by Scalia’s notions as he has stated them it is an activist ruling.

          11th A: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

          By our treaty laws with the tribes they are not citizens or subjects, they are semi-sovereign nations, and like other states should literally be allowed to sue states in federal court. For me previous Court decisions, although probably literally wrong, would have had to have been overturned for the tribe to win and thus my comfort level with stability would have been maintained by concurring with Scalia, and I would have adopted the same bullshit [“we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms”, affirming the previous wrong decisions, of course].

          My point is not about right and wrong and good and evil but about how judges twist to come to a decision they think is right and are not consistent by any means with their stated philosophies. Scalia is notable for his forceful defense of textualism but he ignores the hell out of it when it is inconvenient.

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        • Mark:

          The 15th supersedes state sovereignty arguments which should have no role in the Court decision.

          Why? Where does the constitution say that any attempt by Congress which claims to be enforcing the 15th does not have to comport with the rest of the constitution?

          And is it really your belief that literally any law that congress passes while claiming to enforce the 15th is necessarily constitutional, simply because congress says it is so? That seems insane to me.

          BTW, on this:

          Either Congress thought voting rights were impaired or not and it was not for the Court to rewrite that law.

          How did the Court re-write the law? I thought it simply said that part of it was unconstitutional. The Court didn’t provide a new formula that had to be used. It simply said the existing formula was unconstitutional. Isn’t that what the court is supposed to do if, indeed, the formula is unconstitutional?

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        • Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

          In plain words, unmistakable in their meaning, states cannot deny the vote to citizens by race, color, or previous conditioon of servitude. States have no sovereign right to deny the vote to citizens by race, color or previous condition of servitude. States cannot raise “sovereignty” arguments to deny the right to vote to citizens by race, color or previous condition of servitude.

          Section 2. The Congress shall have power to enforce this article by appropriate legislation.

          Who has the power to enforce this? Plainly, Congress.

          Could Congress over step here? Sure. Do your 2 straw man questions have anything at all to do with this? No.

          The Court took Congress out of the picture by adding on requirements for passing legislation under the 15th that do not appear for passage of other laws. Pre-clearance requirements, subject to opt-out provisions, clearly worked to keep the covered precincts from disenfranchising blacks as intended by the 15th A. Did the Court argue there was no rational basis? No. Did the Court argue there was no compelling interest? How could it? No. It argued that there was a need for Congress to base its distinction among precincts/states set for preclearance on more recent evidence. It rejected the months of actual hearings and 15000 pages of evidence and the specific conclusions reached by Congress in reauthorization in 2005-6.
          This rejection based on faulty legislative history, btw, is justified by the same Scalia who has written that he does not look at legislative history because it has no relevance for textualism.

          The majority even seemed to say that preclearance worked so well it was no longer needed. Doesn’t that itself sound like a legislative argument, not a judicial one?

          I have a busy day, this was fun, but I probably cannot continue this for awhile. Have I convinced you that Scalia is actually an activist, who deviates from textualism when he so desires? Have you tried to convince me that he remains consistent?

          BTW, as QB has pointed out, Thomas hews pretty closely to his philosophy, as far as I can recall.

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        • Mark:

          Could Congress over step here? Sure. Do your 2 straw man questions have anything at all to do with this? No.

          They are not straw man questions. You claimed that congress’s obligation to treat states equally under the law was ‘trumped” by the 15th amendment. I don’t know how you substantiate that claim. The text of the 15th amendment doesn’t say so, and so all we are left with is the bald assertion, which doesn’t make it so unless one believes that the granting of a power to enforce a constitutional provision in and of itself makes all other constitutional considerations moot. Which brings me to the second question.

          You seem to be making two contradictory claims. On the one hand you claim that congress’s disparate, and otherwise unconstitutional, treatment of states is constitutional merely because it has been granted the power to enforce the 15th amendment. On the other, you acknowledge that it is conceivable that congress could overstep its constitutional bounds in enforcing the 15th. So if it is possible for Congress to enforce the 15th in an unconstitutional manner, then the mere power to enforce it can’t in and of itself be taken to make its disparate treatment of states constitutional, as you seem to be asserting.

          The majority even seemed to say that preclearance worked so well it was no longer needed. Doesn’t that itself sound like a legislative argument, not a judicial one?

          No, not in the context of the original decision upholding the disparate treatment as constitutional. The original decision held this
          otherwise plainly unconstitutional treatment to be constitutional because of the existence of “extraordinary” and “unique” circumstances, and also because of its temporary nature. Given that, the absence of those extraordinary and unique circumstances must necessarily render it to be unconstitutional. Now, it seems that you would have the court defer to congress on whether those circumstances still exist. That is to say, if congress re-authorizes section 5, then necessarily the court must assume that the extraordinary and unique circumstances still obtain, thus necessitating the otherwise unconstitutional disparate treatment. But that would imply that the constitutionality of the act is determined simply by congress’s willingness to enact it, not the actual circumstances, which makes no sense at all. Further, it would essentially allow congress to maintain the disparate treatment in perpetuity, despite the fact that the constitutionality of the extraordinary measures rested upon their temporary nature. Again, this makes no sense.

          If the constitutionality of the disparate treatment rests on the existence of “extraordinary” and “unique” circumstances, then the Court itself must be in a position to make a judgement about those circumstances independently of congress, or, at the very least, make a judgement about the way in which congress makes its judgement. To say otherwise is to simply say that the disparate treatment is constitutional solely because congress says it is.

          Have I convinced you that Scalia is actually an activist, who deviates from textualism when he so desires?

          Not yet. You have pointed to 3 examples. I think you are dead wrong about the VRA decision. I don’t think some offhand comments made in an interview about an extraordinarily unique case (Bush v Gore) can be taken to be indicative. (Should judgment of Sotomayor’s judicial philosophy hinge on her “wise latina” remarks?) And, to be totally honest, I don’t quite grasp the relevant issues involved in the Alaska case, so I haven’t been able to make call on that.

          Have you tried to convince me that he remains consistent?

          Nope. Whether or not Scalia is always consistent with his stated philosophy is ultimately neither here nor there with regard to whether the philosophy is proper. But as I noted in an ATiM post a long time ago, at least justices like Scalia have a philosophy against which they can be judged to be consistent or inconsistent. The proudly activist justices can never really be said to be acting hypocritically, because they have no objective standard to which they can be held.

          Like

  24. Why should there be limits on marriage beyond gay marriage? What is the justification for limiting marriage to either male/female or same sex?

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  25. Why should there be limits on marriage beyond gay marriage? What is the justification for limiting marriage to either male/female or same sex?

    People have married goats, horses, cars, trees, buildings just in the past few years. Nothing means anything anymore. We just need some aliens.

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  26. And is it really your belief that literally any law that congress passes while claiming to enforce the 15th is necessarily constitutional, simply because congress says it is so?

    This in fact is exactly what the problem is and what the argument against review of the VRA boils down to. The 15th does not supercede state sovereignty; it gives Congress enforcement power, nothing more. If Congress is doing something other than enforcing the protection of right to vote without regard to race, it has absolutely no authority, and, moreover, if it is invading constitutional rights of citizens under the guise of such enforcement, it is further violating the Constitution by its own purported enforcement action.

    Liberals have the same problematic approach to the enforcement clause of the 14th, which they maintain allows Congress to “expand” but not shrink rights guaranteed in the 14th. It is a “one-way ratchet,” according to them. What this actually means is that they argue that Congress can, without review, decide what enforcement means and can infringe the rights of some to “enforce” the rights of favored groups. I wrote a 3L paper on this for a very famous liberal professor who advocates the one-way ratchet, critiquing his own position.

    Mark obviously despises Scalia; I think his characterizations are completely at odds with reality. The continued use of the VRA to gerrymander and rig elections in certain states was a partisan fraud in the name of enforcement. It is scarcely arguable.

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  27. In Bush v. Gore, the vote was 7-2 that the skewed recount violated the EPC.

    Beyond that, as to the remedy, no credible argument has ever been constructed that a new, complete, uniform recount could ever have been completed. Indeed, no credible argument exists that the December 12 date was not the hard deadline, and it had already arrived.

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  28. “Scalia is notable for his forceful defense of textualism but he ignores the hell out of it when it is inconvenient.”

    For myself, the biggest example ignoring his own philosophy when inconvenient was Gonzales v. Raich, but in that case it was a failure to be an activist and instead he stuck with probably the worst precedent ever, Wickard v Filburn.

    http://en.wikipedia.org/wiki/Gonzales_v._Raich

    “Originalist: Any punishment considered cruel and unusual in 1791 is verboten.”

    I’d correct this to say any punishment considered cruel and unusual in 1791 doesn’t pass constitutional muster. Evolving societal standards on punishment are a proper function of legislation, not constitutional reinterpretation.

    And this:

    “To use your capital punishment example, I would not necessarily have a problem with a judge who declared some new and heretofore unused form of punishment unconstitutional on the grounds that it is cruel and unusual. However, for a judge to declare that a form of punishment that has long been practiced and considered constitutional throughout our history has suddenly become unconstitutional on the grounds that it is cruel and unusual is, undeniably I think, imposing his own preferences and simply using the cruel and unusual clause as a thin rationalization to veil the obvious”

    Lastly, this should set an interesting precedent:

    “As a result, tradition and morality are not rational bases for the MMA.”

    I’m looking forward to all laws based on tradition and morality being struck down then. We can start with zoning ordinances for strip clubs and the like.

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    • jnc:

      You said “And this:” followed by a quote from my comment, but then didn’t follow with any comment. Just curious if you meant to remark on it.

      Like

  29. No just agreeing with you. I think your point about a judge overruling a new punishment as cruel and usual is key. Just like ruling that the 4th Amendment covers wiretaps.

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    • jnc:

      No just agreeing with you.

      Ah, ok.

      One of your comments makes apparent the problem with speaking in terms of “activist” or “not activist” with regard to consistency in judicial philosophy. For example, Mark claims that Scalia’s position in the Alaskan tribe case is “activist” and therefore contrary to his stated philosophy, while you say that Scalia’s failure to be “activist” in the Raich case is contrary to his stated philsophy. I’m thinking perhaps that Scalia’s philosophy isn’t particularly best characterized in activist/non-activist terms.

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  30. It depends on if you view “activist/non-activist” as meaning anything more than “defers to the most recent precedents”.

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  31. Actually, the 4th amendment brings up something interesting in relation to a comment Jimmy Carter made the other day.

    Carter said that he uses physical mail to communicate because due to the NSA he assumes any electronic communications would be monitored.

    http://www.huffingtonpost.com/2014/03/23/jimmy-carter-nsa_n_5017378.html

    His statement, while true is incomplete. It’s due to the NSA’s technological capabilities and the various court rulings restricting the applicability of the 4th Amendment’s protection against unreasonable search. His presumption that snail mail is still protected is based on an “originalist” understanding of the amendment. But under the living Constitution doctrine, there’s no reason that the NSA should be constrained from looking at physical mail, were one to apply the recent precedents.

    Like

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