2nd Civil War Theorycrafting Thread, Peaches Free

[Battlegrinder]

Must courts obey legislatures' command in regards to the severability of a statute? In other words, if a statute explicitly states that its parts cannot be severed, and one part is found unconstitutional, then courts have to strike down the entire statute?

Technically, the court doesn't have to strike down the entire statue, the statue itself is invalidated under it's own terms as if it was repealed by the legislature, but the result is the same, and courts cannot just ignore those provisions, particularly not in cases like this. The constitution vests all authority over election procedures with state legislatures, if they write a law like this that must either stand entirely or fall entirely, no other branch of government can gainsay that. It violates not only basic principles of how the law is to be interpreted by courts, but the constitution itself.

 

[SpaceOrbis]

We know Biden is in the White House now; that doesn't mean Trump lost.

There are enough dodgy ballots, missing paper trails, and denied software credential's to make it impossible to ferret out that actual vote counts, and stuff like SCOTUS first refusing to rule on election law cases before the election, then declaring the issue moot afterwards...maybe Biden won legitly, but the Dems have fought audits so hard that I doubt it.

If Dems had actually won legitly, they'd welcome the electoral audits people have done and demanded.

It kind of does man. Trump and his base of worshippers because lets face facts he is seen by them as a god at this point. I don't doubt some votes were misplaced. That sort of thing happens. But in order for Trump to win he would need some major help. This is like the Moon Landings being faked levels of tinfoil hat stuff. I'm not buying that sort of backroom deals happened, at least to the level needed for this to be worth thinking about.

 

[WolfBear]

Technically, the court doesn't have to strike down the entire statue, the statue itself is invalidated under it's own terms as if it was repealed by the legislature, but the result is the same, and courts cannot just ignore those provisions, particularly not in cases like this. The constitution vests all authority over election procedures with state legislatures, if they write a law like this that must either stand entirely or fall entirely, no other branch of government can gainsay that. It violates not only basic principles of how the law is to be interpreted by courts, but the constitution itself.

What effect would striking down the entire statute have had in this specific case?

Also, by your logic, if some Republican US state legislature wants to close half of the polling places in heavily Democratic areas in order to save money, then courts should not overturn this ruling because this is an action of a US state legislature involving a US presidential election, right?

 

[SpaceOrbis]

What effect would striking down the entire statute have had in this specific case?

Also, by your logic, if some Republican US state legislature wants to close half of the polling places in heavily Democratic areas in order to save money, then courts should not overturn this ruling because this is an action of a US state legislature involving a US presidential election, right?

Any state that makes it harder to vote in a presidential election should have the leaders of that state looked into. Because such an act is interfering with the people's right to vote. The fact we can vote is a gift. We must be willing to fight for that right to not be attacked by anybody.

 

[Battlegrinder]

It kind of does man. Trump and his base of worshippers because lets face facts he is seen by them as a god at this point. I don't doubt some votes were misplaced. That sort of thing happens. But in order for Trump to win he would need some major help. This is like the Moon Landings being faked levels of tinfoil hat stuff.

I would dispute the "as a god" part, he certainly has a certain cult of personality but let's try to be reasonable in describing it.

As for the actual fraud claim, I would say there are two different arguments being made, and that many people will mix up the two or not clearly articulate them.

The first version, and the one that has intentionally been magnified by the left, is that the entire election was totally fraudulent and that if you actually counted all the votes that were legally cast by registered, legal voters, that Trump would have won and the only reason the tally said Biden did was [reasons]. I don't find that case compelling, but I think if you're being fair-minded it's hard to deny that if there was ever an election the democrats would go all in to win, by any means legal or otherwise, it would be this one, given their generally deranged behavior over the past 4 years, and that fact alone gives this theory a lot of staying power regardless of it's actual motives (like, if you argued that actually they cheated to get Obama past the finish line against Romney, people wouldn't buy that for a moment).

The second, and much stronger version, is that while the actual vote tally was probably mostly legit (Chicago still exists, after all) the dems did everything they could to tilt it in Biden's favor and under normal rules, where states weren't spamming out mail in ballots to everyone regardless of if they'd asked for one, working with various parties to "fortify" the election (to use the memorably turn of phrase from that time magazine article), the press wasn't openly working to help Biden get elected, etc, Biden might not have won.

What effect would striking down the entire statute have had in this specific case?

You'd have to look up the exact law in question to know, I have not read it as it's not really relevant in terms of the court's actions.

Also, by your logic, if some Republican US state legislature wants to close half of the polling places in heavily Democratic areas in order to save money, then courts should not overturn this ruling because this is an action of a US state legislature involving a US presidential election, right?

Presuming it's a legally valid policy change, yes (States control elections, but their laws governing elections must still be legal under their state constitution and the US constitution). The courts have repeatedly ruled that certain questions and issues related to blatant partisanship and rigging the field in their favor are not juridically addressable, they are fundamentally political matters and not judicial ones (gerrymandering being the go-to example).

Any state that makes it harder to vote in a presidential election should have the leaders of that state looked into. Because such an act is interfering with the people's right to vote. The fact we can vote is a gift. We must be willing to fight for that right to not be attacked by anybody.

Question, why do you think it's a net positive to have more people voting? Why should the default be "easier" rather than "harder"?

 

[SpaceOrbis]

I would dispute the "as a god" part, he certainly has a certain cult of personality but let's try to be reasonable in describing it.

Question, why do you think it's a net positive to have more people voting? Why should the default be "easier" rather than "harder"?

1-I have seen people around him act like he is the second coming of Jesus. As an atheist myself I find the idea that the right views him in such a way to be disturbing, to say the least. There are many people worthy of being viewed highly. Trump isn't one of them and I doubt he'll be worthy of being viewed as such in 2024.

2-Why would it not be a good thing to have more people voting? The United States of America has something around 330 million people last time I checked. Once we remove people who lost the right due to unlawful deeds we should still have most of that 330+ million. I doubt more than half voted. I say that because I didn't see the total votes at the end. Once it was clear Trump was moving out I got into my bed and enjoyed a good sleep.

Now as for why I feel it should be easier I don't. I do think laws that stop people from doing so are wrong. I think that making it so one part of a state is set up to house mostly Republican voters and Democrat voters are dishonest. But we make the best of what we have.

 

[Bacle]

It kind of does man. Trump and his base of worshippers because lets face facts he is seen by them as a god at this point. I don't doubt some votes were misplaced. That sort of thing happens. But in order for Trump to win he would need some major help. This is like the Moon Landings being faked levels of tinfoil hat stuff. I'm not buying that sort of backroom deals happened, at least to the level needed for this to be worth thinking about.

I remember when I used to think like that too, that this sort of shit was beyond the scope of the elite and powers in DC.

I used to be in your position, arguing shit like this was impossible conspiracy shit. The masks came off when George Floyd died.

The powers that be didn't count on that disrupting their narratives, after they'd already squandered it on the first Impeachment attempt that was based on a lie. That only happened because Trump dared point out connections between the Biden family and Ukraine.

Any state that makes it harder to vote in a presidential election should have the leaders of that state looked into. Because such an act is interfering with the people's right to vote. The fact we can vote is a gift. We must be willing to fight for that right to not be attacked by anybody.

Registered and eligible voters, important distinction.

Felons don't get to vote in most places, for example, and neither do foreign nationals.

In addition, the paper ballots themselves need safeguards against fraudulent duplication, theft, or coercion. Project Veritas caught shit on camera going on in Texas, under the local GOP encouraging votes for Biden no less to elderly people at their home in direct violation of state law. That's even before we get into the electronic voting machines and accusations of weighed vote totals in the software (machine ration'd the votes so Biden would get like 1.23 of a vote while Trump got 0.77 of a vote, and it came out looking like 2 'whole votes').

Why would you have decimal places behind a vote in a election machine, if not to make one vote equal less than another and hide it in the vote totals?

The GOP establishment was in on it; that's why it was able to happen. They wanted Trump gone because he was a threat to their golden parachutes and corpo payout's.

 

[The Whispering Monk]

but currently have their movement largely be silent and/or making excuses for the January 6 insurrectionists!

What insurrectionists?
I never saw any, and none are being charged with it.

I'm fine with that as everybody has a right to their views. But having the right to hold a view in no way makes that view true.

Ayup... Just make sure you remember that when you look in the mirror.

Yes, Yes, 'coz Democrats are the real racists!

That's true historically.
It's also true presently by action and act.

But wouldn't that be clearly unconstitutional? You may as well just say our form of government no longer exists.

Nah...SCOTUS is all ready good at manufacturing law. Look how they turned Obama care into a tax.

Oh...

 

[SpaceOrbis]

I remember when I used to think like that too, that this sort of shit was beyond the scope of the elite and powers in DC.

I used to be in your position, arguing shit like this was impossible conspiracy shit. The masks came off when George Floyd died.

The powers that be didn't count on that disrupting their narratives, after they'd already squandered it on the first Impeachment attempt that was based on a lie. That only happened because Trump dared point out connections between the Biden family and Ukraine.

Registered and eligible voters, important distinction.

Felons don't get to vote in most places, for example, and neither do foreign nationals.

In addition, the paper ballots themselves need safeguards against fraudulent duplication, theft, or coercion. Project Veritas caught shit on camera going on in Texas, under the local GOP encouraging votes for Biden no less to elderly people at their home in direct violation of state law. That's even before we get into the electronic voting machines and accusations of weighed vote totals in the software (machine ration'd the votes so Biden would get like 1.23 of a vote while Trump got 0.77 of a vote, and it came out looking like 2 'whole votes'.

Why would you have decimal places behind a vote in a election machine, if not to make one vote equal less than another and hide it in the vote totals?

The GOP establishment was in on it; that's why it was able to happen. They wanted Trump gone because he was a threat to their golden parachutes and corpo payout's.

Wasn't he the guy who robbed a place and was shot by a cop a few years ago? Or was that the guy who had a cop on his neck so he couldn't get air? There have been so many cop killings that I no longer know who is who anymore.

As for thinking this way and powers that be. I'm not dumb. I know that the nation has done some messed-up shit. I'm just not going to buy into the idea that there was some mad plan to remove Trump by making votes get lost or whatever. That is the sort of tinfoil hat nonsense I try my best to keep away from.

It would make for a fun political thriller book. I'm sure it would sell.

 

[WolfBear]

What insurrectionists?
I never saw any, and none are being charged with it.

That's because the Biden DOJ is very soft on them.

Nah...SCOTUS is all ready good at manufacturing law. Look how they turned Obama care into a tax.

Oh...

Isn't it a tax in a substantive sense, though?

 

[Battlegrinder]

1-I have seen people around him act like he is the second coming of Jesus. As an atheist myself I find the idea that the right views him in such a way to be disturbing, to say the least. There are many people worthy of being viewed highly. Trump isn't one of them and I doubt he'll be worthy of being viewed as such in 2024.

While those people certainly exist, they're a minority, and they're hardly confided to just Trump. Lots of people have Robert Muller prayer candles gathering dust in thier cabinets, or for the most direct counterexample, look at how hagiographic parts of the left acted toward Obama, and still do on a much more muted level.

Trump was certainly extreme in this regard, but not much more than usual, Americans have always had an extremely odd attitude toward the president.

2-Why would it not be a good thing to have more people voting?

Because most of them have no idea what the issues are or what changes they actually want made. For example, in a recent poll about abortion, it was a 50/50 split if people wanted to restrict abortion or not, but a strong majority in favor of keeping Roe vs Wade on the books, in a margin of like 70% or so. Meaning a large number of people said they want to restrict abortion, while retaining the court ruling that bans the ability to restrict abortion. Guns are another issue, where large portions of the public say they want more gun control, and then polled on specific measures will say they want to enact policies that are already part of the law, like background checks.

For the record, it's not much better when you get to the people that do know what they're talking about, because political engagement is strongly correlated with being a stubbornly intractable partisan (as this forum demonstrates, given it's full of people who's grasp of the issues is usually matched only by their desire to prevent the other side from getting it's way on that issue).

Isn't it a tax in a substantive sense, though?

In a substantive sense, yes. In a legal sense, which is the only grounds on which the court is permitted to engage with it, no.

 

[WolfBear]

In a substantive sense, yes. In a legal sense, which is the only grounds on which the court is permitted to engage with it, no.

But I thought that the purpose of legal analysis was not to merely look at the form of a law, but also to look at its substance? Let's imagine it in the constitutional amendment context: Let's say that there will be a new US constitutional amendment passed through the normal process that would keep the US Senate but turn it into a figurehead body. Would it actually be constitutional? There's an explicit constitutional prohibition on stripping any US state of its equal representation in the US Senate without its consent, but what about keeping the equal representation and simply gutting the powers of the US Senate? It accomplishes much of the same goal.

 

[Battlegrinder]

But I thought that the purpose of legal analysis was not to merely look at the form of a law, but also to look at its substance?

No. Congress can only pass laws within the narrow set of inumerated powers it was given by the constitution, regardless of the substantial benefits of passing that law or how well it conforms to the general ideals of the constitution. Even in the post Wickard va Filburn era where the commerce clause has been grossly distorted into something that allows congress to meddle in all sorts of things it was never intended to have a hand in, there are still limits on Congress's authority.

Would it actually be constitutional?

The SC has no ability to declare a part of the constitution to be in violation of the constitution, or even to address clearly unfair and immoral parts of the constitution itself.

 

[WolfBear]

No. Congress can only pass laws within the narrow set of inumerated powers it was given by the constitution, regardless of the substantial benefits of passing that law or how well it conforms to the general ideals of the constitution. Even in the post Wickard va Filburn era where the commerce clause has been grossly distorted into something that allows congress to meddle in all sorts of things it was never intended to have a hand in, there are still limits on Congress's authority.

It's not about substantive *benefits*, but rather about the substantive *identity* of a particular provision, though.

The SC has no ability to declare a part of the constitution to be in violation of the constitution, or even to address clearly unfair and immoral parts of the constitution itself.

It won't become a part of the constitution if it's unconstitutional, though:

Unconstitutional constitutional amendment - Wikipedia

en.wikipedia.org

 

[Zachowon]

It's not about substantive *benefits*, but rather about the substantive *identity* of a particular provision, though.



It won't become a part of the constitution if it's unconstitutional, though:

Unconstitutional constitutional amendment - Wikipedia

en.wikipedia.org

If the SC can find a amendment unconstitutional then you have lost your rights

 

[WolfBear]

If the SC can find a amendment unconstitutional then you have lost your rights

Even if the US constitution explicitly prohibits a particular amendment?

 

[Battlegrinder]

It's not about substantive *benefits*, but rather about the substantive *identity* of a particular provision, though.

In this case, the identity of that provision was a fee charged to people as a punishment for not owning insurance, justified within the law as an extension of Congress's ability to regulate commerce.

Congress absolutely does not have the authority to compell you to engage in commerce of any sort, interstate or otherwise, and it is not the SC's job to fix Congress's laws for them. If congress passes a law that is not legal, fixing it is Congress's problem.

It won't become a part of the constitution if it's unconstitutional, though:

That's a very theoretical, very fringe legal concept that, as even that article notes, in the US conception and discussion of the idea, is mostly just a way for lefts to fantasize about getting rid of stuff that they don't like. And in reality, it's irrelevant.

Put bluntly, were this actually to happen and the US decided to, say, abolish the republic and institute the current president as the new King of America and the SC argued that they weren't actually allowed to do that, the response would not be "ah, well, fair enough, I guess I'm not the King anymore". It would be "I recognise the court has made a decision, but given that it's a stupid-ass decision, I've elected to ignore it" (or the more traditional "says you and what army?"). And indeed, that's happened repeatedly. Lincoln nobly refused to comply with or respect the Dredd Scott decision, and Jackson less than nobly refused to comply with Worcester v. Georgia.

Laws and court orders are not geas that compel people to obey them via magic. They are only as biding as the will to enforce them, because ultimately that's what matters, the ability to force compliance with one's demands. If a large enough number of people support something that they can get an amendment passed for, enough people support it that they would support an "illegal" use of force to enact it.

 

[Zachowon]

Even if the US constitution explicitly prohibits a particular amendment?

Oh?
Like what one? Because the articles mentioned IS the constrains wr are talking about. Not strictly the amendments.
And that is a slippery slope because then you can claim, are the bill of rights really God given rights? Are they unconstitutional in modern times because we say they are?

 

[WolfBear]

In this case, the identity of that provision was a fee charged to people as a punishment for not owning insurance, justified within the law as an extension of Congress's ability to regulate commerce.

Congress absolutely does not have the authority to compell you to engage in commerce of any sort, interstate or otherwise, and it is not the SC's job to fix Congress's laws for them. If congress passes a law that is not legal, fixing it is Congress's problem.

What exactly is the substantive difference between this and a tax, though? The Commerce Clause argument was a bad one, though; I'll grant you that.

That's a very theoretical, very fringe legal concept that, as even that article notes, in the US conception and discussion of the idea, is mostly just a way for lefts to fantasize about getting rid of stuff that they don't like. And in reality, it's irrelevant.

Put bluntly, were this actually to happen and the US decided to, say, abolish the republic and institute the current president as the new King of America and the SC argued that they weren't actually allowed to do that, the response would not be "ah, well, fair enough, I guess I'm not the King anymore". It would be "I recognise the court has made a decision, but given that it's a stupid-ass decision, I've elected to ignore it" (or the more traditional "says you and what army?"). And indeed, that's happened repeatedly. Lincoln nobly refused to comply with or respect the Dredd Scott decision, and Jackson less than nobly refused to comply with Worcester v. Georgia.

Laws and court orders are not geas that compel people to obey them via magic. They are only as biding as the will to enforce them, because ultimately that's what matters, the ability to force compliance with one's demands. If a large enough number of people support something that they can get an amendment passed for, enough people support it that they would support an "illegal" use of force to enact it.

Yep, that's absolutely correct. And the judges in question can also be impeached for this and removed from office.

 

[WolfBear]

Oh?
Like what one? Because the articles mentioned IS the constrains wr are talking about. Not strictly the amendments.
And that is a slippery slope because then you can claim, are the bill of rights really God given rights? Are they unconstitutional in modern times because we say they are?

Article Five of the United States Constitution - Wikipedia

en.wikipedia.org

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

The italicized part here is the relevant one.